Jatinder Kumar & Ors vs State Of Punjab & Ors on 28 September, 1984

    PETITIONER:

JATINDER KUMAR & ORS.

 Vs.

RESPONDENT:

STATE OF PUNJAB & ORS.

DATE OF JUDGMENT28/09/1984

BENCH:

MISRA, R.B. (J)

BENCH:

MISRA, R.B. (J)

DESAI, D.A.

SEN, AMARENDRA NATH (J)

CITATION:

 1984 AIR 1850 1985 SCR (1) 899

 1985 SCC (1) 122 1984 SCALE (2)513

 CITATOR INFO :

 D 1991 SC1612 (1,7,8)

 E&R 1992 SC 749 (5)

ACT:

     Right to be appointed to posts for which one was selected and recommended
by the Subordinate Service Selection Board, nature of-Whether selection for the
purpose of recruitments against anticipated vacancies create an enforceable
right by Writ of Mandamus-Whether non- appointment on the ground of non-
existence of post amount to mala fides and in violation of Articles 14 and 16 of
the Constitution and the principles of Promissory Estoppel- Constitution of
India 1950, Article 320(3), whether mandatory or directory.

HEADNOTE:

     Pursuant to a requisition of the Inspector General of Police Punjab to
select and recommend suitable persons for the post of Assistant Sub-Inspectors
of Police against 57 available vacancies And 170 anticipated vacancies likely to
occur as a result of expected re-organisation of the Police Force by disbandment
of the Punjab Armed Police Battalion, the appellant along with many others were
interviewed and physically tested on various dates and the Board recommended
panel of 144 candidates on 22nd December, 1979. The proposal for disbandment of
the Punjab Armed Police Battalion and creation instead of additional posts in
the Districts was turned down by the Government with the result that there were
only 57 posts out of which 9 were offered to The wards or the deceased police
officers in accordance with the Punjab Government Instructions regarding
priority appointments issued vide the letter No. 80(GOI)-SII(3)/73/ 12092 dated
18th April, 1973 and the remaining 48 posts were offered to the candidates
recommended by the Board in order of merit determined by the Board. Since
remaining candidates recommended by the Board pursuant to the requisition
against anticipated vacancies were not appointed as there were no vacancies the
disgruntled candidates filed two petitions under Article 226 of the Constitution
before the High Court. The petitions having been dismissed, two appeals were
preferred under the Letters Patent which were also dismissed Hence the appeals
by Special Leave.

     Dismissing the appeals, the Court

^

     HELD: 1. The fact that there is no provision in the Constitution which
makes the acceptance of the advice tendered by the Public Service Commission
when consulted, obligatory renders the provisions of Article 320(3) only
directory and not mandatory. [905 E]

     2. The establishment of an independent body like Public Service Commission
is to ensure selection of best available persons for appointment to the post to
avoid arbitrariness and nepotism in the matter of appointment. The selection by
tho Commission, however, is only a recommendation of the Com-

900

mission and the final authority for appointment is the Government. The
Government may accept the recommendation or may decline to accept the same. But
if it chooses not to accept the recommendations of the Commission the
Constitution enjoins the Government to place on the table of the Legislative
Assembly its reason and report for doing so. Thus the Government is made
answerable to the l louse for any departure vide Article 323 of the
Constitution. This, however, does not clothe the appellants with any such right
in the instant case. l hey cannot claim as of right that the Government must
except the recommendation of the Commission. If, however, the vacancy is to be
filled up, the Government has to make appointment strictly adhering to the order
merit as recommended by the Public Service Commission, it cannot disturb the
order of merit according to its own sweet-will except for other good reasons
namely bad conduct or character. The Government cannot appoint person whose name
does not appear in the list. But it is open to the (Government to decide how
many appointments will be made. The process for selection and selection for the
purpose of recruitment against anticipated vacancies does not create a right to
be appointed to the post which can be enforced by a Mandamus. [905 F-H; 906 A-D]

     A.N.D.' Silva v. Union of India, [1962] Supp I S.C.R. 968; State of Haryana
v. Subash Chander Marwaha & Ors., [1974]] I SCR 165: applied.

     G.S. Kalkat v. State of Punjab & Ors. (Punjab and Haryana decided on 15th
July, 1980; held inapplicable. 3:1. The allegation about the mala fides are more
easily made than made out. In the instant case, there are no materials to
warrant the conclusion that the action of The State Government in not appointing
the appellants was mala- fide especially when the post in anticipation whereof
the Board was asked to select more candidates came to an end. There was no
question of their appointment against these vacancies [906 G; 907 A]

     3:2. The action of the Government is not hit by Articles 14 and 16 of the
Constitution and the case of the appellants is not identical with those of the
persons who were appointed as against 57 vacancies for which original
requisition was made to the Board for selecting them [907 B] 3:3. The
notification issued by the Selection Board in this case was only an invitation
to candidates possessing specified qualifications to apply for selection for
recruitment for certain posts. It did not hold out any promise that the
selection would be made or if it was made the selected candidates would be
appointed. The candidates did not acquire any right merely by applying for
selection or for appointment after selection When the proposal for disbandment
or the Punjab Armed Police Battalion and instead creation of additional posts
for the district police was turned down by the State Government, the appellants
were only informed of the situation and there was no question of any promissory
estoppel against the State. [907 C-D]

JUDGMENT:

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1194 of 1984.

     Appeal by Special leave from the Judgment and order dated the Ist and 3rd
March, 1982 of the Punjab and Haryana High Court in

901

L.P.A No. 188 of 1982

     Frank Anthony and Susheel Kumar for the Appellant M.S. Gujaral and S.K.
Bagga for the Respondent The Judgment of the Court was delivered by MISRA, J.
The main question for consideration in this appeal by special leave is whether a
person selected by the Subordinate Service Selection Board for direct
appointment to the post of Assistant Sub-inspector of Police has got an
unfettered right to be appointed on the basis of the recommendation made by the
said Board.

     The material facts to bring out the point in controversy are as follows. On
31st of March, 1978 the Inspector General of Police, Punjab, respondent No. 2,
sent a requisition to the Subordinate Service Selection Board (for short, the
Board), respondent No. 3, to select and recommend 7 suitable pensions for the
post of Assistant Sub- Inspectors of Police. While the matter was pending
consideration 50 more posts of Assistant Sub-Inspectors of Police became
available and, therefore, the Board was requested to recommend 57 suitable
persons for these posts. The appellants along with many others were interviewed
and physically tested on various dates ranging from 24th of October 1978 to 6th
of February, 1979. Later on after the interviews were over but before the select
list could be finalised by the Board the Inspector General of Police vide his
letter dated 31st of August, 1979 requested the Board to recommend 170 more
persons in addition to 57 already under consideration in anticipation of further
vacancies likely to occur as a result of expected reorganisation of the Police
force. In that connection a proposal for the disbandment of the Punjab Armed
Police Battalion and instead creation of some additional posts for the District
Police, had already been submitted. Thus, in all 277 candidates were to be
recruited by the Board for the post of Assistant Sub- Inspectors of Police. The
Board however, recommended a panel of 144 candidates on 22nd of December, 1979.
It appears that the proposal for disbandment of the Punjab Armed Police
Battalion and creation of additional posts in the districts referred to above
was turned down by the Government and, therefore, the anticipated 170 temporary
vacancies of Assistant Sub-Inspectors against direct recruitment quota could not
be available. Out of the earlier 57 posts, however, 9 were offered to the wards
of 902

the deceased police officers in accordance with the Punjab Government
instructions regarding priority appointments issued vide letter No. 80 (GOI)-SII
(3)/73 12092 dated 18th April, 1973. The remaining 48 posts were offered to the
candidates recommended by the Board in order of merit determined by the Board.
Since the remaining candidates recommended by the Board pursuant to the latter
requisition were not appointed as there were no vacancies, the disgruntled
candidates filed two petitions under Art. 226 of the Constitution before the
High Court.

     The stand of the petitioners in the two petitions was: (a) that the
vacancies had already been communicated to the Board and it was on that basis
that the Board had recommended their names for appointment and the State was
bound to appoint them on the basis of the recommendation of the Board; (b) that
the State was bound to follow the Punjab Police Rules and under rule 12. 3
twenty-five per cent of the posts in the rank of Assistant Sub- Inspectors are
to be filled in by direct recruitment and the remaining seventy five per cent
are to be filled by promotion;

     (c) that the State adopted a device of making ad hoc appointment of the
Assistant Sub-Inspectors by posting Head-Constables as Assistant Sub- Inspectors
and the whole action was mala fide as the State Government intended to select
and appoint its own favourites,

     (d) that the action of the Government in not appointing them pursuant to
the recommendation of the Board is violative of Arts. 14 and 16 of the
Constitution;

     (e) that even after the abolition of the Board the candidates recommended
by it could not be refused appointment on the ground that the Board later on
became functus officio; and

     (f) that even after the expiry of six months fixed by the Government
instructions the petitioners could be appointed on the basis of recommendation
of the Board.

903

     The petitions were resisted by the State Government on the ground inter
alia that by 7th of January, 1980 only 57 posts in the direct recruitment quota
became available and appointments were made. As regards the remaining vacancies
of 170 temporary posts of Assistant Sub-Inspectors, proposal for disbandment of
the Punjab Armed Police Battalion and instead creation of some additional posts
for the District Police was eventually turned down by the State Government and
so no additional vacancies became available and the petitioners could not be
appointed. In any case the petitioners could not claim appointment as of right
merely because the Board had recommended their names. It was further pleaded
that according to the Government instructions issued vide letter No.1673-C-II-56
dated 22nd March, 1957 a time limit of six months had been prescribed for
filling up the vacancies by persons recommended by the Board and after the
expiry of six months a fresh reference had to be made to the Board. As six
months prescribed had already expired the petitioners could not be appointed on
the basis of the recommendation of the Board. They also denied the allegation of
mala fides in the ad hoc appointment of other persons and further pleaded that
the refusal of the Government to appoint them was not hit by Articles 14 and 16
of the Constitution.

     On a consideration of the material on the record the learned Single Judge
came to the conclusion that there was neither any vacancy in the quota of direct
recruits of Assistant Sub-Inspectors nor a single post meant for direct recruits
is manned by an ad hoc employee, that no case of mala fides or favouritism has
been made out, and that there was no violation of Articles 14 and 16 of the
Constitution. A letters patent appeal preferred by the petitioners before the
High Court was also dismissed. The petitioners in the writ petition feeling
aggrieved have filed the present appeal by special leave.

     The petitioners before this Court in appeal categorically stated on oath
that 500 promotions had been made by the State of Punjab and that the
petitioners were entitled to 25 percent of those posts according to quota rule.
They also alleged that 250 vacancies of Assistant Sub- Inspectors were available
in the C.I.D. wing alone in the Punjab Police and 250 persons had been promoted
against those vacancies on ad hoc basis. This Court by its order dated 9th
January, 1984 directed the State to supply detailed information to the
petitioners of the names and designations of the Head Constables

904

promoted as Assistant Sub-Inspectors between the period from 1979 to 1983.
Pursuant to that order the State gave full details of the various promotions
made by them during the period 1979 to 1983. rt revealed that the promotions
made in various ranges totalled 646 and according to the State during 1979-1983,
576 vacancies of Assistant Sub-Inspectors in promotee quota became available on
account of promotion of 576 Assistant Sub-Inspectors to the rank of Offg. Sub-
Inspectors, 5 against retirement of such officers, 13 due to death, 2 due to
dismissal and 4 due to reversion of promotee Assistant Sub-Inspectors. In
addition, a total of 60 additional temporary posts of Assistant Sub-Inspectors
were sanctioned by the Government c, during the period against which such
promotions were made. Thus, out of the total 660 vacancies of promotee quota
during the aforesaid period 646 promotions had been made and on 31 December,
1983 there were 14 vacancies in the rank of Assistant Sub-Inspectors Against
promotee quota.

     Before we deal with the points raised by Mr. Frank Anthony in support of
the appellants we must record our disapproval of the inconsistent pleas taken by
it at various stages. To start with, it took up the plea that there Were no ad
hoc appointments of Assistant Sub-Inspectors from 1979 but later on it went back
upon its previous statement and admitted that there were ad hoc appointments
made but explained the position by subsequent affidavits wherein it was stated
that the C.I.D. has no cadre strength of its own and all the posts, except
language Stenographer, are filled in by taking officers on deputation from other
units of the Police department and no ad hoc appointments were made in the rank
of Assistant Sub-Inspectors and that the petitioners could not be appointed as
no posts for the petitioners were available with the department, but it is not
necessary to refer to those explanations in any detail. Be that as it may, the
fact remains that in anticipation of the proposal for disbandment of the Punjab
Armed Police Battalion and instead creation of some additional posts for the
district police a requisition was made for selecting 170 more candidates for
direct appointment to the post of Assistant Sub-Inspectors. But the proposal
having been turned down by the Government there were no vacancies and,
therefore, the question arises whether the petitioners have got an unfettered
right to be appointed even though the aforesaid proposal had not been accepted
and consequently there were no vacancies. 905

     We now take up the contentions raised by Mr. Frank Anthony counsel for the
appellants, that they have a right to be appointed to the post of Assistant Sub-
Inspectors on the basis of the selection made by the Board Article 320 of the
Constitution enumerates the duties to be performed by the Union or the State
Public Service Commissions:

     (i) to conduct examinations for appointments to the services of the Union
and the services of the State respectively;

     (ii) if requested by any two or more States so to do, to assist those
States in framing and operating schemes of joint recruitment for any services
for which candidates possessing special qualifications are required;

     (iii)to advise on matters enumerated under cl. (3) of Article 320; and

     (iv) to advise on any matters so referred to them and any other matter
which the President, or as the case may be, the Governor of the State may refer
to them.

The fact that there is no provision in the Constitution which makes the
acceptance of the advice tendered by the Commission, when consulted, obligatory
renders the provisions of Art. 320(3) only directory and not mandatory. The
establishment of an independent body like Public Service Commission is to ensure
selection of best available persons for appointment in a post to avoid
arbitrariness and nepotism in the matter of appointment. It is constituted by
reasons of high ability varied experience and of undisputed integrity and
further assisted by experts on the subject. It Is true that they are appointed
by Government but once they are appointed their independence is secured by
various provisions of the Constitution. Whenever the Government is required to
make an appointment to a higher public office it is required to consult the
Public Service Commission. The selection has to be made by the commission and
the Government has to fill up the posts by appointing those selected and
recommended by the Commission adhering to the order of merit in the list of
candidates sent by the Public Service Commission. The selection by the
Commission, however, is only a recommendation of the Commission and the final
authority for appointment is the Government. The Government may

906

accept the recommendation or may decline to accept the same. But if it chooses
not to accept the recommendation of the Commission the Constitution enjoins the
Government to place on the table of the Legislative Assembly its reasons and
report for doing so. Thus, the Government is made answerable to the House for
any departure vide Article 323 of the Constitution, This, however, does not
clothe the appellants with any such right. They cannot claim as of right that
the Government must accept the recommendation of the Commission. If, however,
vacancy is to be filled up, the Government has to make appointment strictly
adhering to the order of merit as recommended by the Public Service Commission.
It cannot disturb the order of merit according to its own sweet will expect for
other good reasons viz., bad conduct or character. The Government also cannot
appoint a persons whose names does not appear in the list. But it is open to the
Government to decide how many appointments will be made. The process for
selection and selection for the purpose of recruitment against anticipated
vacancies does not create a right to be appointed to the post which can be
enforced by a mandamus. We are supported in our view by the two earlier
decisions of this Court in A.N.D. Silva v. Union of India and State of Haryana
v. Subash Chander Marwaha & Ors. The contention of Mr. Anthony to the contrary
cannot be accepted.

     It was next contended for the appellants that the Punjab and Haryana High
Court itself had taken a different view in G.S. Kalkat v. State of Punjab and
Ors. from the one taken in the instant case and a copy of the judgment in that
case has been filed. We have perused the judgment but find that the facts of the
case were materially different from the facts of the case in hand.

     The next contention raised on behalf of the appellants was that the action
of the Government in not appointing them in spite of the fact that they were
selected and their names were recommended by the Board for appointment, was mala
fide. The allegations about mala fides are more easily made than made out. There
are no materials before us to warrant the conclusion that the action of the
State Government in not appointing them was mala fide especially when the posts
in anticipation where of the Board was asked to select more 907

candidates came to an end. There was no question of their appointment against
those vacancies.

     Likewise, the contention that the action of the Government is hit by Art.
14 and 16 of the Constitution has no substance. The case of the appellants is
not identical with those of the persons who were appointed as against 57
vacancies for which original requisition was made to the Board for selecting
them.

     An argument of desperation was further advanced about promissory estoppel
stopping the State Government from acting in the manner it did in not appointing
the appellants although their names had been recommended. The notification
issued by the Board in this case was only an invitation to candidates possessing
specified qualifications to apply for selection for recruitment for certain
posts. It did not hold out any promise that the selection would be made or if it
was made the selected candidates would be appointed. The candidates did not
acquire any right merely by applying for selection or for appointment after
selection. When the proposal for disbandment of the Punjab Armed Police
Battalion and instead creation of additional posts for the district police was
turned down by the State Government, the appellants were duly informed of the
situation and there was no question of any promissory estoppel against the
State. It was further contended by Mr. Anthony that the recommendation made by
the Board would remain effective even after the body had become defunct. It is
not necessary to go into detail in this contention in as much as the fate of the
case depends upon whether the appellants had a right to get appointed on the
basis of the selection and recommendation made by the Board. The appellants came
to Court to vindicate their right but if they had no right there was no question
of enforcing that right.

     For the foregoing discussion the appeal has no force and therefore, it must
fail. It is accordingly dismissed but in the circumstances of the case the
parties should bear their own costs.

S.R. Appeal dismissed

908