Sumit Kumar & Others vs Union Of India & Others

Lok Pal Singh, J

Since, controversy involved in all the writ petitions are identical and arises out of the same selection process, therefore, the aforesaid bunch of petitions have been heard together and are being disposed of by a common judgment.

Facts, in brief, are that respondent authority issued an advertisement in the year 2015, for the appointment of constable (G.D) in the various Central Armed Forces like C.R.P.F., B.S.F., Assam Rifle, ITBP, CISF and CAPF for the Border Districts Posts in the State of Uttarakhand and others States of India. Petitioners have applied for the said posts online and completed all the requisite formalities, thereafter, successful petitioners were issued admit cards for the written examination. The petitioners were declared qualified and called for medical examination. The cut off marks in respect of various categories for different States were fixed. Finally, the Staff Selection Commission declared the result of the candidates and issued appointment letters to 57, 014 candidates only.

It is the contention of the learned counsel for the petitioners that 62,390 vacancies have been advertised for the aforesaid post and petitioners have appeared in the examination against the total 362 vacancies to be recruited from the Border District Posts in the State of Uttarakhand. It is further contended that respondent authority issued appointment letters to 57,014 candidates and 5376 posts are still lying vacant due to non issuance of the appointment letter to those candidates who have completed the examination process. It is also contended that the petitioners have secured higher marks than the cut off marks and they also belong to Border Districts.

Mr. Pankaj Chaturvedi, learned counsel appearing for Union of India has placed reliance upon the judgment of Hon'ble High Court of Judicature at Patna in the case of Pintoo Kumar Singh & others vs. Union of India & others, along with analogous matter decided on 05.04.2018 and would submit that similar controversy was before that Hon'ble Court and following order was passed:-

I have heard the learned counsel for the respective parties as well as considered the materials on record. Firstly, I find from the records that the reasons which have been furnished by the respondents for showing that the petitioners have not been selected finally for the post of Constables, the main reason being the writ petitioners having less marks than the last selected candidates in the respective categories, has not been disputed by the writ petitioners, as such to the said extent, no fault can be found with the selection process conducted by the respondents. Secondly, the issue of change of the categories etc. as has been stated hereinabove and is also apparent from the response filed by the respondents in various writ petitions, do not smack of any arbitrariness or malpractices and that is why it appears that the learned counsel for the writ petitioners has ultimately abandoned the said ground for assailing the selection process. Thirdly, the issue of fixing of cut-off marks has also been adequately explained by the respondents and the fact is that no person having lesser marks than the writ petitioners has been appointed or to put it differently the writ petitioners have obtained lesser marks than the marks obtained by the last selected candidate of the respective categories.

Thus the only point, now left, for consideration is as to whether the writ petitioners would be entitled to be considered against the mismatch vacancies as well as against the left over vacancies which have not been filled up. In this regard, it would be appropriate to refer to a Judgment rendered by the Hon‟ble Supreme Court in the case of Asha Kaul & ors. vs. State of Jammu & Kashmir & ors. reported in (1993) 2 SCC 573, paragraph no. 8 whereof is reproduced hereinbelow:-

"8. 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 Chander Marwaha1; Mani Subrat Jain v. State of Haryana2; State of Kerala v. A. Lakshmikutty3) 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. This aspect has been dealt with by a Constitution Bench of this Court in Shankarsan Dash v. Union of India4 where the earlier decisions of this Court are also noted. The following observations of the Court are apposite: (SCC pp. 50-51, para 7)

"It is not correct to say that if a number of vacancies are notified Patna High Court CWJC No.4547 of 2017 dt.05-04-2018 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 State of Haryana v. Subhash Chander Marwaha1, Neelima Shangla v. State of Haryana5 or Jatendra Kumar v. State of Punjab."

In the present case no reasons have been assigned by the respondents for non-filling the vacant posts of Constable and the only reason for non-filling the vacant post is, no person lower in merit has been appointed. It must be authoritatively held that the said ground is not a plausible reason for not filling up the advertised post which have undisputedly been calculated after a proper exercise. I am of the opinion that the reason for denial of appointment to the writ petitioners i.e. "no candidate with lower merit than the petitioner has been appointed", would have been a good argument in case all the advertised posts were filled up and then the writ petitioners would have had no right to be considered for appointment. It is not the case of the respondents that the writ petitioners have failed the examination/test/selection process inasmuch as they have qualified on each and every step, however, since they have lesser marks than the marks obtained by the last selected candidate, they have not been appointed.

Though it is a settled legal position that mere selection does not give a candidate an indefeasible right to appointment but that principle does not hold good in cases where the posts advertised have remained vacant. It is equally a settled law that a State cannot deny appointment to a person duly selected without a justifiable cause. Thus following the principle laid down by the Hon‟ble Apex Court in the case of Asha Kaul (supra) as well as in the case of Shankarsan (supra), which are good Law till date, I am of the view that the respondents 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 for the reason that firstly the State does not have the license to act in an arbitrary manner and secondly since the respondents, in the present case, have failed to show any bona fide or appropriate reasons for not filling up the left over vacancies. Another aspect of the matter is that when such huge resources, especially the tax payers money, are spent by the authorities/the Staff Selection Commission, for recruiting personnel‟s, the entire exercise is required to be taken to a logical conclusion and the same cannot be short circuited by not filling up all the vacancies advertised and that too without any plausible or appropriate reasons.

For the reasons mentioned hereinabove, I direct the respondents to consider the claim of the writ petitioners for appointment on the post of constable against the mismatch/left over vacancies within a period of 30 days from today, without resorting to the principle that since the writ petitioners have secured lower marks than the marks obtained by the last selected candidates, they cannot be appointed. It is needless to state that the respondents would not compromise on merits and the minimum standards so prescribed by them. It is further held that the decision taken by the Apex Body of the Central Staff Selection Commission /Staff Selection Commission shall be final and would not be amenable to challenge in writ proceedings under Article 226/227 of the Constitution of India.

The writ petitions are allowed to the aforesaid extent.

I have gone through the entire judgment. I am in complete agreement with the findings recorded by the Hon'ble High Court Judicature at Patna.

Undisputedly, petitioners have completed the entire examination process and were declared qualified. Still 5376 posts are lying vacant and respondents have failed to show any plausible reason for not filling up the left over vacancies. The Hon'ble Apex Court in the case of Asha Kaul vs. State of Jammu & Kashmir reported in (1993) 2 SCC 573 has already held that the Government to act fairly and whole exercise cannot be reduced to a farce. If a requisition to select the candidates for a particular category has been sent to the Commission pursuant to which Commission issued notification, holds a written examination, conduct interview and prepared list and then communicate to the Government, the Government on its own without any valid and good reason cannot put the finally selected candidates on hold.

Our country, which is a democratic country, and also considering the fact that our State is a welfare State, it is not expected from the State to discriminate between similarly situated persons. It is also settled position in law that once the selection process commenced it should be brought to its logical conclusion and the respondents have not authority to give appointment to the persons of their choice from the select list and deny others without there being any plausible reasons.

In view of the above, the aforementioned writ petitions stand allowed. A mandamus is issued directing the respondents to give appointment to the petitioners on the post of Constable (G.D) for Border District in the Central Armed Police Forces against unfilled vacancies within a period of 30 days from the date of production of certified copy of this judgment.

No order as to costs.