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Judgment
Honorable Mr. Justice K. Chandru
In W.P. (MD) No. 10372 of 2007, the petitioner seeks for a direction to the second respondent or any other higher officer to conduct a fresh and fair interview and consequently appoint him as a Conductor. In the writ petition, initially notice was ordered. Subsequently, it was admitted on 08.01.2008. Pending the writ petition, one post was directed to be kept vacant.
In W.P. (MD) No. 11200 of 2009, the petitioner seeks for a direction to join and send him for training in the post of driver as per the appointment order dated 04.09.2007. In this writ petition, notice of motion was ordered. Pending notice, no interim order was granted. The letter which was referred to by the petitioner was only an invitation to appear for the purpose of grant of temporary employment and the petitioner was also directed to pay Rs.2000/- by way of a demand draft.
In W.P. (MD) Nos. 11504 to 11507 and 12087 of 2008 and 792 of 2009, the petitioners seek for a direction to implement the order of the second respondent, dated 14.2.2008. The order referred to by the petitioners was only an invitation to appear along with the certificates together with the security deposit.
The counsel for the respondents Mr. Royce Emmanuel submitted that these matters are squarely covered by the earlier order of this court in W.P. (MD) Nos. 5794 to 5801 of 2009, dated 28.11.2011 (L.S. Narayanan and others Vs. The General Manager, Tamil Nadu State Transport Corporation (Madurai) Ltd., Tirunelveli Region, Tirunelveli and another).
Though Mr. J. Ashok, learned counsel for M/s. P. Jeyapaul Associates appearing for petitioners stated that these cases stand on different footing, this court is unable to agree with the same, because the earlier order referred to the identical facts situation, where persons were asked to come for temporary appointment and also with a demand draft of Rs.2000/-. Even after compliance with those conditions, when appointment orders were not given, the respondents had pointed out that no such appointments have been made. The recruitment was conducted only on adhoc basis for increased transport operations in three districts. It was also pointed out that Rs.2000/- paid by way of demand draft has also been returned to candidates. It is in that circumstance, this court held that in the absence of any legal or enforceable right, the question of issuing writ in the nature of mandamus will not arise. The court also referred to a decision of the Supreme Court in S.S. Balu and Another Vs. State of Kerala and Others, .
Even otherwise, the Supreme Court had dealt with the issue very elaborately in a decision in State of M.P. and Others Vs. Sanjay Kumar Pathak and Others, . The following passages found in paragraphs 15,20,21,22, 24,25 and 26 may be usefully extracted below:
The respondents do not dispute before us that the tabulation of the marks obtained by them was not finalized. For the purpose of selection, the marks allotted to each of the candidates should be known to the members of the Selection Committee. Members of the Selection Committee before preparing the select list were entitled to undergo a consultative process so as to enable them to arrive at a consensus in regard to the candidates who should be appointed. As the tabulation process itself was not completed, the question of preparing any select list also did not arise.
It is well known that even selected candidates do not have legal right in this behalf. (See Shankarsan Dash v. Union of India2 and Asha Kaul v. State of J&K3.)
In K. Jayamohan v. State of Kerala4 this Court held : SCC p. 171, para 5)
It is settled legal position that merely because a candidate is selected and kept in the waiting list, he does not acquire any absolute right to appointment. It is open to the Government to make the appointment or not. Even if there is any vacancy, it is not incumbent upon the Government to fill up the same. But the appointing authority must give reasonable explanation for non-appointment. Equally, the Public Service Commission/recruitment agency shall prepare a waiting list only to the extent of anticipated vacancies. In view of the above settled legal position, no error is found in the judgment of the High Court warranting interference.
(See also Munna Roy v. Union of India5.)
In All India SC&ST Employees'' Assn. v. A. Arthur Jeen6 it was opined: (SCC p. 387, para 10)
Merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarsan Dash v. Union of India2. Para 7 of the said judgment reads thus: (SCC pp. 50-51) ''7. 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 license 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 in State of Haryana v. Subash Chander Marwaha7, Neelima Shangla v. State of Haryana8 or Jatinder Kumar v. State of Punjab9.
In Pitta Naveen Kumar v. Raja Narasaiah Zangiti11 this Court observed: (SCC p. 273, para 32)
The legal position obtaining in this behalf is not in dispute. A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India has only a right to be considered therefore. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise.
In a situation of this nature, no appointment could be made by the State in absence of the select list. The State could not substitute itself for the Selection Committee.
Furthermore, ordinarily, the writ court should not, in absence of any legal right, act on the basis of sympathy alone.
In Ramakrishna Kamat v. State of Karnataka12 albeit in the light of right of regularization in service, this Court opined: (SCC p. 378, para 7)
It is clear from the order of the learned Single Judge and looking to the very directions given, a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the court the courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment.
(See also Maruti Udyog Ltd. v. Ram Lal13, State of Bihar v. Amrendra KumarMishra14, Regional Manager, SBI v. Mahatma Mishra15 and State of Karnataka v. Ameerbi16.)
In the light of the above, this court is unable to countenance with the prayer made by the petitioners. Hence all the writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions stand closed.