Srikant Jha and Others vs The Union Of India and Others

Dipak Misra, C.J.—In this intra-court appeal the assail is to the order dated 13.8.2009 passed by the learned Single Judge in CWJC. No. 9668 of 2009. Be it noted, the said writ petition was disposed of along with CWJC. No. 9670 of 2009.

The facts, which are imperative to be stated, are that the State Government brought an advertisement on 13th June, 2009 stating, inter alia, that for filling up the posts of Subject Matter Specialist in the Department of Agriculture, State of Bihar, there was stipulation regarding age limit in Clause - 2 of the said advertisement. The said Clause which is in Hindi on being translated into English reads as under:

Age limit as on 01.01.2008 shall be determined for Unreserved 37 years, Extremely Backward and Other Backward Classes 40 years, Women (Unreserved and Extremely Backward and other Backward Classes) 40 years and Scheduled Castes/Scheduled Tribes (Men and Women) 42 years.

Thus, on a perusal of the said clause it is evident that a person belonging to the General Category can apply upto 37 years and the candidates belonging to other Backward Classes, Extremely Backward Classes and the Women belonging to both General and Other Backward Classes Categories upto 40 years and the candidates of Scheduled Castes and Scheduled Tribes Categories can apply upto 42 years.

Being aggrieved by the aforesaid, some candidates preferred CWJC. No. 7366 of 2009. The learned Single Judge of this court by order dated 13.7.2009 after referring to the resolution of the Personnel Department dated 18.7.2009 passed the following order:

Having heard the learned counsel for the petitioners and the State, I direct the petitioners to approach the State Government in the Agriculture Department with a representation requesting the department to reconsider the Clause -2 of the advertisement dated 13.6.2009 (Annexure-1) and to make it in tune with the resolution of the government dated 18.7.2007 (Annexure -7). It goes without saying that while considering the representation, the authorities will bear in mind that the appointment on similar post in the Agriculture Department has not been made for over 15 years and petitioners have become over age during those years. Considering the aforesaid aspect of the matter, the authorities should fix the maximum age under Clause -2 of the advertisement. It further goes without saying that in the event representation is allowed necessary corrigendum modifying Clause -2 be issued and the application form of petitioners be accepted.

In pursuance of the aforesaid order a decision was taken on 26.7.2009 reiterating the resolution and took a decision not to change the age mentioned in the advertisement dated 13.6.2009. The said decision gave rise to the grievance, as a consequence of which the present writ petitions being CWJC. No. 9668 of 2009 and CWJC. No. 9670 of 2009 were preferred. The learned Single Judge referred to the earlier order and directed that it was incumbent upon the State Government to issue an advertisement in consonance with the resolution dated 18.7.2007 and also keeping in view the two other advertisements dated 14.6.2008 and 8.1.2009 issued by the Agriculture Department for the Government posts. After so holding the learned Single Judge proceeded to direct as follows:

In the event, the authorities are of the opinion that for appointment on the post of Subject Matter Specialist, the contents of resolution dated 18.7.2007 and advertisement dated 11.6.2008 and 8.1.2009, Annexures -4 and 5 need not be adhered to then for such variance the authorities would be duty bound to record reasons. Necessary compliance in this regard be made by the authorities as early as possible, in any case within one month from the date of receipt/production of a copy of this order. Any appointment made, in the meanwhile shall be subject to the order of the authorities.

Be it noted, the present appellants are aggrieved and dissatisfied with the aforesaid order and, therefore, they filed an application being IA. No. 6536 of 2009 for grant of leave to prefer the appeal and this court has already granted leave.

Questioning the correctness of the order, it is submitted by Mr. Rajendra Singh, learned Senior Counsel, being assisted by Mr. Rajiv Kumar Singh, learned counsel appearing for the petitioner, that the order passed by the learned Single Judge is vulnerable in law inasmuch as the learned Judge while exercising the jurisdiction under Article 226 of the Constitution of India could not have directed for determination of the age for submitting applications. It is also canvassed by him that in pursuance of the earlier advertisement dated 13.6.2009 when the selection process had commenced there could not have been a change in the advertisement as the same jeopardizes interest of the candidates. It is urged by him that a fructified and ripened right of the appellants have been scuttled and smothered in the midway without any fathomable reason and further it had been interdicted at a stage which was not warranted. Learned Senior Counsel has also submitted that the recent advertisement, which has been brought into existence through the order passed by the learned Single Judge, vide Annexure -E dated 16.2.2010 stipulates the age to be 65 years on 1.1.2008 which does not have any rationale. To bolster the submission, he has placed reliance on the decision rendered in P. Mahendran and others Vs. State of Karnataka and others, and on an unreported decision of this Court in CWJC. No. 2425 of 1998 (Narendra Deo and others.Vs. The State of Bihar and others), disposed of on 2.9.1993.

Mr. Kaushal Kumar Jha, learned Standing Counsel - XVIII, being assisted by Mr. Amish Kumar, learned counsel appearing for the State, has submitted that the order passed by the learned Single Judge is flawless inasmuch as he has to quash the Annexure -1, the advertisement, as the same was in transgression of the policy of the State Government. It is further submitted that the learned Single Judge, as is manifest from the order, has also granted liberty to the State Government to change the age by recording reasons, and, therefore, it cannot be regarded as an absolute mandamus. It is contended by him that mere empanelment does not confer any right on the appellants and, hence, the tall claim put forth claiming a crystallised right has no legs to stand upon. It is submitted by the learned counsel for the State that the State Government being an employer has determined the age in its wisdom and keeping the nature of the contractual appointment, which is really not an appointment in the Government Post or in the Cadre and the appellants cannot raise any cavil over the same. Criticizing the comment on the recent advertisement, it is propounded by him that fixation of the said age on a particular date does not affect the appellants as they are within the age limit and have applied on the basis of the re-advertisement. Learned counsel for the State to buttress his submission has drawn inspiration from the decision rendered in Punjab Electricity Board and others Vs. Malkiat Singh, 2005 (1) PLJR (SC) 231.

Mr. Thakur, learned counsel appearing for the original writ petitioners, has supported the stand and stance put forth by the learned counsel for the State.

To appreciate the submissions raised at the Bar, we have carefully perused the order passed by the learned Single Judge, the advertisement dated 13.6.2009, the order passed on earlier occasion in CWJC. No. 7366 of 2009, and the policy decision dated 18.7.2007. On a scrutiny of the policy decision dated 18.7.2007, it clear as crystal that the clauses enumerated therein postulated with regard to the eligibility criteria and also stipulated that for employment on contract basis the maximum age limit would be 65 years. In the advertisement that was issued on 13.6.2009 the age limit was restricted as has been mentioned hereinabove and was counter to the Government resolution. It is worth noting that as the policy decision of the State Government was not changed accordingly, on the earlier occasion, the learned Single Judge had directed but the same had no effect. Being aggrieved the present writ petition was preferred and the learned Single Judge quashed the same and directed to follow the resolution and also aptly granted liberty to the State Government enabling them to change the date by ascribing cogent and germane reasons. As is evident, the State Government has accepted the decision and has issued the advertisement as per Annexure -E, which is in consonance with the policy decision.

The questions that arise for consideration is whether any right has been crystallized in favour of the present appellants and whether the cancellation of advertisement is erroneous to be interfered with.

The submission of Mr. Singh, learned Senior Counsel, is that when the advertisement had already been issued and the selection process had commenced, it could not have been changed in the midway by the judicial intervention. Further, the State Government could not have also changed the same. In the case of P.Mahendran and others (supra) a three-Judge-Bench of the Apex Court, while dealing the governing factor of amended Rules to a continuing selection, held that the amending Rules would have prospective applicability and would not invalidate the selections already made. In paragraph -2 of the said decision, their Lordships noted the fact that the selected candidates were given intimation of selection and the State Government had taken steps for imparting them three months'' training before appointing them as Motor Vehicle Inspectors.

In Narendra Deo and others (supra), the learned Single Judge in paragraph - 13 has held as follows:

In the case of P. Mahendran and others Vs. State of Karnataka and others, same view has been reiterated. In that case, according to Karanataka General Service (Motor Vehicles Branch (Recruitment) Rules (1962), which was also framed under Article 309 of the Constitution, the persons having diploma in mechanical engineering, were also eligible for appointment on the posts of Motor Vehicle Inspectors. According to the said Rules, advertisements were issued and applications were filed and before final selection could be made, amendment was made in the Rules, according to which persons, who were having diploma in mechanical engineering, were not eligible for consideration for the post of Motor Vehicle Inspector. The selection list was challenged before the Administrative Tribunal on the ground that according to the amended Rules, the persons having diploma in mechanical engineering being not eligible for the post of Motor Vehicle Inspectors could not have been selected. The Tribunal allowed the application and quashed the selection of those candidates, who were holding diploma in mechanical engineering. The Tribunal after quashing the selection directed for fresh advertisement in accordance with the provisions as contained in amended Rules. Challenging the aforesaid Rules an application was filed under Article 32 of the Constitution. Against the order of Tribunal an appeal was taken to the apex court, which was allowed, order of Tribunal was quashed and the State Government was directed to make appointment on the posts of Motor Vehicle Inspectors on the basis of the selection list prepared and finalized by the Commission holding that the process of selection has to be completed in accordance with the existing Rules and the right acquired under the existing Rules cannot be affected by any amendment made in the Rules. The Court observed thus:-

If a candidate applies for a post in response to advertisement issued by Public Service Commission in accordance with recruitment Rules he acquires right to be considered for selection in accordance with the then existing Rules. This right cannot be affected by amendment of any Rule unless the amending Rule is retrospective in nature.

There can be no cavil over the aforesaid proposition of law, but, a significant one, the factual matrix in the present case is absolutely different because of the fact that the appellants were neither issued any letter of appointment nor they were communicated anything with regard to their selection. The State Government at its own level had prepared a panel and mere empanelment does not confer any right on a candidate. Our view gets fortified by the decision rendered in Shankarsan Dash Vs. Union of India, wherein 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 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 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 The State of Haryana Vs. Subash Chander Marwaha and Others, Miss Neelima Shangla, Ph. D. Candidate Vs. State of Haryana and Others, or Jatinder Kumar and Others Vs. State of Punjab and Others,

The same position is reiterated and followed by this Court in All India SC and ST Employees Assn. and Another etc. Vs. A. Arthur Jeen and Others etc., and State of Orissa and Others Vs. Bhikari Charan Khuntia and Others etc.,

The said position was reiterated in All India SC and ST Employees Assn. and Another etc. Vs. A. Arthur Jeen and Others etc., State of Orissa and Others Vs. Bhikari Charan Khuntia and Others etc., and in the case of Malkiat Singh (supra).

In view of the aforesaid analysis, it can be stated with certitude that no vested rights accrued in favour of the present appellants.

The next submission of Mr. Singh, learned Senior Counsel, is that it is upto the employer to fix the age and the writ court cannot command the employer to fix the age. The aforesaid submission, needless to say, though has its signification yet, in the present case, if we are allowed to say so, has no application. The learned Single Judge has only interpreted the resolution and directed the State Government to act in accordance with the policy. To issue a direction to the State Government to act in accordance with the policy cannot be said to be an interference or interdiction as is understood by Mr. Singh. That apart the learned Single Judge has also passed the order in a guarded manner by granting liberty to the State Government. The State Government in its wisdom did not challenge the said order. It was upto the State Government to challenge the same but chose not to do so. On the contrary, it has honoured its own policy.

In view of aforesaid factum, we do not perceive any merit in the submission advanced by Mr. Singh, learned Senior Counsel. That apart the advertisement pertained to contractual appointment and not in respect of posts in the Cadre.

Another aspect highlighted by Mr. Singh is that there is anomaly in Clauses - 2 & 13 of the advertisement. It is urged by him that at the entry level the maximum age limit is 65 and the age of termination or extinction of service, as is manifest from Clause 13, is also 65. On reading of both Clauses together, no anomaly is perceptible even if we X-ray both the clauses or scan the same with the aid of magnifying glass. The anomaly highlighted by Mr. Singh, the learned Senior Counsel, leaves us unimpressed.

The last limb of submission of Mr. Singh fixing the age at 65 on 1.1.2008 in the advertisement issued on 16.2.2010 has no rationality. Whether the same suffers from any kind of arbitrariness or rationality need not be delved into for simon-pure reason, the appellants are within the age limit and have already applied. When the grievance does not relate to them even remotely they cannot become champions to espouse the cause of others who are not before the court. Such a challenge is impermissible.

In view of aforesaid premised reasons, the appeal being, sans merit, stands dismissed without any order as to costs.