Summary
A successor Government of Assam cancelled a select list of 104 Forest Protection Force constables, prepared on an interview-only selection without recruitment rules, on the basis of a note of the Principal Chief Conservator of Forests pointing to district-wise concentration of selectees, violation of the reservation policy and inclusion of non-meritorious candidates; the Gauhati High Court set the cancellation aside as curable irregularities needing an inquiry. The Supreme Court held that the cancellation withstood both Wednesbury unreasonableness and proportionality, that the writ court had wrongly substituted its own view, that selected candidates may question an arbitrary refusal to appoint but had no infringed right here as the list was never approved, and permitted a fresh process with age and physical-standard relaxations for the respondents.
Issues
- Whether the High Court was justified in interfering with the Government's decision to cancel the select list and in directing that the selection process be carried forward.
- Whether the decision to cancel the select list was vulnerable on the doctrine of Wednesbury unreasonableness or suspect on the doctrine of proportionality.
- Whether cancellation of the select list infringed any legal right of the selected candidates such that a writ petition under Article 226 was maintainable at their instance.
- Whether the State was urging new grounds for the cancellation beyond those originally assigned, contrary to Mohinder Singh Gill.
- What relief should follow.
Provisions considered
- Article 226, Constitution of IndiaThe Court rejected the extreme contention that an empanelled candidate has no right at all to move the writ court: though no indefeasible right of appointment accrues, a decision not to appoint despite vacancies and a valid list must be bona fide, for justifiable reasons and not arbitrary, and a writ court may intervene on reaching the requisite satisfaction. On the facts no legal right was infringed because the select list had never received the Government's approval, so the writ petition ought not to have been allowed. (¶¶ 20, 53, 54, 55)
- Article 162, Constitution of IndiaConducting a recruitment process without recruitment rules, on executive instructions under Article 162, is not by itself a ground of invalidation (B.N. Nagarajan; Swaran Lata), though the Court observed that framing rules and prescribing a written examination would have been desirable. (¶¶ 34, 35, 36)
- Article 142, Constitution of IndiaInvoked to direct that the respondents, if they apply under the fresh advertisement, be considered with their age bar waived and insignificant deficiencies in physical measurement and the physical efficiency test overlooked, since almost a decade had passed since the earlier process. (¶ 64)
Held
- Candidates selected pursuant to an advertisement acquire no indefeasible right to appointment and, unless the recruitment rules so indicate, the State is under no duty to fill the vacancies; but the State has no licence to act arbitrarily and a decision not to fill vacancies must be taken bona fide for appropriate reasons (Subash Chander Marwaha; Shankarsan Dash; Jai Singh Dalal). A successor Government may not upset its predecessor's decisions merely because of a change of regime, but it cannot blink at illegalities committed earlier; where a reasonable apprehension exists, suspending or cancelling the process is not per se arbitrary (Jitendra Kumar). Where larger public interest is involved, additional grounds may be looked into, Mohinder Singh Gill notwithstanding (K. Shyam Kumar). (¶¶ 23, 24, 25, 26, 27, 28, 29)
- The 'when, which, what, who and how' of a recruitment process is the prerogative of the recruiting authority, subject to any statutory provisions and to absolute fairness and non-arbitrariness; courts normally do not interfere unless the process smacks of mala fides. Neither the absence of recruitment rules nor selection by interview alone is per se a vitiating factor, though, the right to be considered for public employment being a fundamental right, it is safe and prudent to frame rules and prescribe a written test, and recruitment on executive orders without statutory standards invites avoidable litigation. (¶¶ 34, 35, 36)
- Where the successor Government, on the PCCF's note (64 of 104 selectees from two districts and none from sixteen; the ratio of candidates called for interview and the reservation policy given a go-bye; meritorious reserved-category candidates wrongly placed against reserved vacancies; a candidate at serial 162 of the general list selected; the process described as unfair and non-transparent), chose to cancel the whole process rather than complete it or separate the grain from the chaff, the High Court had to apply the proportionality test to that choice among the available options. Instead the single Judge exercised appellate jurisdiction, treated the matter as if no malpractice was alleged against the candidates, and substituted its view; the Division Bench wrongly insisted on a detailed inquiry when the Government had reached its own satisfaction on the note. Fostering diversity and inclusivity in public service without compromising merit is a legitimate commitment, two views being possible the Government's view was neither unreasonable nor implausible, the process bordered on fraud in its disregard of the reservation policy and of this Court's decisions on meritorious reserved-category candidates, and the cancellation was neither Wednesbury-unreasonable nor disproportionate. (¶¶ 31, 33, 37, 38, 39, 40, 41, 42, 43, 44, 45, 51, 52, 58)
- Anamica Mishra, Rajesh P.U. and Sachin Kumar were distinguishable: each case turns on its own facts, and it must be pleaded and proved that the recruiting authority's decision to cancel the entire process rather than save the untainted part is wholly disproportionate to the risk and overly severe relative to what is at stake, so as to be irrational. That was not established here. (¶¶ 46, 47, 48, 49, 50)
- An empanelled or selected candidate does not altogether lack the right to move the writ court. Mere empanelment confers no indefeasible right and the employer may cancel the list or decline to carry the process forward for cogent and germane reasons; but the appointing authority cannot ignore the select panel or refuse appointment on its whims, there must be a justifiable reason to decline to appoint a person on the panel when a vacancy exists (R.S. Mittal; Dinesh Kumar Kashyap), and a policy decision not to carry the process forward must be bona fide and free of arbitrariness. Aspirants may therefore question an adverse decision, the relief depending on the facts of each case. Here, however, the respondents' legal rights were not infringed because the select list never acquired legitimacy through Government approval, so the writ petition should not have been allowed. (¶¶ 53, 54, 55, 56)
- The objection that the State urged new grounds did not arise, since the Court confined itself to the PCCF's note of 04.07.2016 and did not look at the counter-affidavit; the law in Mohinder Singh Gill therefore had no application. (¶ 57)
Result
Appeal allowed without costs; the High Court's judgments quashed; liberty to the State to fill the 104 constable posts by a fresh advertisement (framing recruitment rules being desirable, failing which the administrative instructions are to be made public); under Article 142 the respondents, if they apply, are to be considered with their age bar waived and insignificant physical-measurement and PET deficiencies overlooked, the PCCF being free to grant further relaxation; the fresh process to be concluded without delay; pending applications disposed of.