Surya Kr. Das vs State of Assam and Others

P.G. Agarwal, J.—Both these civil rule are being disposed of by this common order. Although the facts are different the question of law that arises for determination is common, that is, whether a direction in the nature of Mandamus can be issued by the Court for appointment of candidates empanelled in the Select List after the expiry of the validity of the Select List and whether the validity of the Select List can be extended by the Court.

I have heard Mr. A.K. Phukan and Mr. B.K. Sharma, learned Counsel for the Petitioners of the respective writ petitions and Mr. D. Goswami, learned Addl. Sr. Govt. Advocate and Mr. B. Banerjee, learned Govt. Advocate for the State.

Surjya Kumar Das, Petitioner in Civil Rule No. 18 of 1994 belongs to the Scheduled Caste community and he participated in the selection process for the post of L.D.A.-cum-Typist for District level offices conducted by the Central Recruitment Committee, Dibrugarh. Petitioner''s name appeared at Sl. No.2 of the Select List belonging to the Scheduled Caste and Scheduled Tribe as a separate list was prepared for the reserved class and Anrther list for the general classes. Although some appointments were made the Petitioner was not appointed. As per office memorandum dated 15th June, 1992, the Select List remains in force for 12 calendar months from the date of announcement. The Select List in the present case was published on 25.6.93/30.6.93. As no appointment was made and as the Select List expired on 31.12.93 as claimed the Government, the Petitioner approached this Court for a direction for quashing the Government order regarding expiry of the Select List on 31.12.93 and for a direction to appoint the Petitioner.

Civil Rule No. 5294/96 was instituted by All Bodoland Autonomous Council Grade-in Selected Candidates Association, for short ''the Association''. The Petitioner Association represents the interest of 162 selected candidates who are empanelled for appointment to Grade-Ill posts in the Bodoland Autonomous Council, hereinafter referred to as ''B.A.C.'' In response to advertisement dated 7.1.94 issued by the Principal Secretary, B.A.C., a large number of candidates applied for. Thereafter, written test, typing test and viva-voce was held and vide notification dated 14.10.95 a Select List of 162 persons for recruitment to Grade-in was published. However, as no appointment was made from the said Select List some agitational programme was taken by the members of the Petitioner''s association and the authorities gave assurance but nothing fruitful came out. As the validly of the said Select List was to expire on 14.10.96 and as no appointments were made the Petitioners filed the present case for extending the validly of the Select List and for a direction for appointment. This Court vide order dated 10.10.96 provided:

The appointment to the Class-III posts under the BAC shall be subject to the outcome of the Civil Rule and pendency of this Civil Rule shall not be a bar for the Respondents to appoint the selected candidates as per select list (Annexure-3) to the writ application.

From the pleadings of the parties, it is seen that in Civil Rule No. 5294/96 although a Select List of 162 candidates was prepared, none has been appointed from the said Select List and the said Select List was allowed to expire on 14.10.96. The Petitioners have filed an additional affidavit stating that during the year 1997-98 some persons were appointed to a certain post in B.A.C. outside the Select List. In Civil Rule No. 18/94 it is stated by the Petitioner that some appointments were made on the basis of the Select List and thereafter the authorities refused to act on the said Select List mainly on the ground that the Central Recruitment Committee system was abolished and that the Select List had expired. There was however no allegation that any one below the Petitioner was appointed. According to the Respondents the said Select List expired on 31.12.93, whereas according to the Petitioner it expired on 30.6.94. The fact, however, remains that in both the writ petitions the Select List is no more in force.

Learned Counsel for the Respondents has submitted that no direction for implementing the Select List can be issued now as the Select List has expired and moreover by mere empanelment, no right has accrued to the Petitioner for their appointment. In a catena of decisions, the Apex Court has held that inclusion of candidate''s name in the merit list/Select List does not confer any indefeasible right to the selectee for appointment. In the case of Jai Singh Dalal and Others Vs. State of Haryana and Another, it was held by the Apex Court that the recruitment process can be stopped by the Government at any time before a candidate is appointed. A candidate has no vested right to compel the Government to complete the process. The Court further held:

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 according to revised criteria. In the present case, the selection was yet to be made by the Commission. Therefore, the Petitioners cannot even claim that they were selected for appointment by the Commission. The selection process had not been completed and before that, the State Government reviewed its earlier decision and decided to revise the eligibility criteria for appointment, no right of Petitioners has been violated.

In the case of Bodoland Autonomous Council, a list of, as many as, 162 candidates was prepared but in view of the ongoing dispute regarding the jurisdiction of the council etc., the appointments were not made. The action of the Government cannot be said to be arbitrary.

Learned Counsel for the Petitioner has submitted that the Petitioners have approached this Court during the validity of the selection period and in view of the interim order passed by this Court, this Court can direct extension of the validity list and necessary orders for appointment of the Petitioners may be passed. Learned Counsel for the Petitioners have relied on a decision of this Court. In the case of Sumala Bow and Ors. v. State of Assam and Ors. 1989 (1) GLR 471. The facts in Sumala Boro (Supra) were altogether different. The law was settled by a decision of this Court in the case of Indian Airlines and Anr. v. Debashis Sutradhar and Ors. 1995(3) GLR 359. This Court held:

We cannot imagine by what stretch of imagination, the validity of the Select List can now be extended uptil the year, 1995 for a selection which had been held in the year 1989. If we permit the validity of the Select List which had been prepared in pursuance of the examination which had been held in the year 1989 for selection and appointment in the year 1995 i.e. after a lapse of six years, in our opinion, it would clearly violate the principles of Articles of 14 and 16 of the Constitution of India inasmuch as it would deprive the candidates who had become eligible for applying for selection to be appointed as Traffic Assistants during this period.

In a recent case, Govt. of Orissa v. Haraprasad Das and Ors. AIR 1998 SC 375, the Apex Court held:

Merely because there were some vacant posts of Copy Holders and the Director of the Press had recommended to the Government to fill up those posts it was not open to the Tribunal to direct the Government to fill up those posts even though it had good reasons not to do so. It should have been appreciated by the Tribunal that mere empanelment or inclusion of one''s name in the selection list does not give him a right to be appointed. So also if the Government decides not to make further appointments for a valid reason, it cannot be said that it has acted arbitrarily by not appointing those whose names are included in the selection list. Whether to fill up a post or not is a policy decision and unless it is shown to be arbitrary it is not open to the Tribunal to interfere with such decision of the Government and direct it to make further appointments.

The Court further held "The Tribunal in directing the Government to make further appointment from the said list has committed illegality in exercise of its jurisdiction. Even if the said Rule is treated as directory and mandatory, it was not for the Tribunal to direct the Government to treat it as ''alive'' and in force and to make further appointments from that list.

To sum up, it is seen that in Civil Rule 5294/96 no appointments were made from me Select List and the said Select List was allowed to expire. In the other case it is stated that some appointments were made but before the turn of the Petitioner came, Government decided not to make further appointments and the Central Recruitment Scheme was replaced. The validity of the Select List also had expired long back. Thus in both the cases it was the policy decision of the Respondent State for not making appointment There is no allegation whatsoever that the action of the State is arbitrary. Further, ACTUS CURIAE NEMINEM GRAVABIT (An act of the Court shall prejudice none). If it is provided that the Select List is still valid in the year 2000 and the Petitioner is entitled to appointment, then it will definitely prejudice the claim of the other candidates who in the meantime have become eligible to apply for the post. No right has accrued to the Petitioners in view of the interim order of this Court.

In the result, it is held that the Petitioners are not entitled to any relief. Both the writ Petitions are. therefore dismissed.