Full Judgment Text
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CASE NO.:
Appeal (civil) 6116 of 1999
PETITIONER:
Punjab State Electricity Board & Ors.
RESPONDENT:
Malkiat Singh
DATE OF JUDGMENT: 11/10/2004
BENCH:
SHIVARAJ V. PATIL & B.N. SRIKRISHNA
JUDGMENT:
J U D G M E N T
Shivaraj V. Patil J.
The appellant-Board acquired 987 acres of land
situated in few villages for setting up of a power project,
which included 10 Kanals and 18 marlas belonging to the
respondent, at Lehra Mohabbat and paid compensation to
the land owners. On 18.7.1994, the appellant Board, with
a view to rehabilitate the displaced persons who lost their
lands because of acquisition, vide Office Order dated
18.7.1994 constituted a committee for providing
employment on priority basis to one member of the affected
family whose land has been acquired for the aforesaid
purpose. Pursuant to the said policy decision as contained
in the Office Order dated 18.7.1994, names of 277 persons
were recommended for appointment on priority basis. The
respondent was one among them. Out of them, 173
persons were appointed against the available vacancies on
the basis of qualification possessed by them limited to the
maximum of Class-III posts. On 15.5.1998 and 2.6.1998,
the appellant-Board revised the policy considering that
there was no justification to offer employment to those
persons whose lands acquired were very nominal and they
need not be given appointment. It was further decided that
instead of the Committee constituted earlier, the Chief
Engineer (GHTP) should re-examine the proposal only of
those land owners whose lands to the extent of 2 acres or
more had been acquired for giving benefit of employment
on priority basis. It was also decided that no relaxation as
regards qualification or age be given in future. Pursuant to
this amended policy, cases of the candidates whose lands
were acquired were considered and only three candidates
were recommended for appointment. All other pending
cases were rejected. By the Office Order dated 1.7.1998,
the appellant-Board decided to set up a homeopathic
dispensary at Lehra Mohabbat power station for which a
Class-II post of Homeopathy Physician was created for the
welfare of staff and their families stationed at the aforesaid
power project. A separate committee was also constituted
for selecting a suitable candidate for the said post.
Pursuant to the said Office Order, the Chief Engineer on
17.9.1998 addressed a letter to the District Employment
Officer, Bhatinda to send names of suitable candidates for
the said post by 27th October, 1998. When things stood
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thus, the respondent approached the High Court by filing
Civil Writ Petition No. 16989/1998 with a prayer to quash
the aforesaid letter dated 17.9.1998, and to quash the
revised policy decision dated 2.6.1998. Further, direction
was sought to the appellant-Board to appoint him as a
Homeopathic Physician in the Homeopethic dispensary at
Lehra Mohabbat power station. The appellant-Board
contested the writ petition raising plea that he was not
eligible to be appointed on priority basis under the scheme;
inter alia contenting that the acquired land of the
respondent was less than two acres and as such he was not
eligible for appointment on priority basis in terms of the
policy dated 2.6.1998; the post of Homeopathic Physician
was not a Class-III post and as such he was not eligible
even under the original scheme dated 18.7.1994; more
over, he was found over-aged and no relaxation could be
given under the amended scheme dated 2.6.1998. The
appellant also contended that merely because the
respondent was one of the 277 candidates whose names
were recommended by the committee for appointment, the
same does not entitle him for the appointment. Further,
the compensation for the acquired land was given to the
respondent as in case of other land owners and as such the
respondent could not claim appointment under the scheme
as a matter of right. The Division Bench of the High Court,
by the impugned judgment, allowed the writ petition and
directed the appellant-Board to offer appointment for the
post of Homeopathic Physician to the respondent as soon as
possible, preferably within one month from the date of the
order. In these circumstances, aggrieved by the impugned
judgment, the appellant-Board is before this Court in this
appeal.
The learned counsel for the appellant urged: (1) the
High Court committed an error in proceeding on a wrong
footing that the respondent got a vested right by virtue of
Office Order dated 18.7.1994 when his name was
recommended for appointment pursuant to the said order;
the policy could not be changed subsequently to the
disadvantage of the respondent; (2) the decision to set sup
a homeopathic dispensary and to appoint a Homeopathic
Physician (a Class-II post) was taken on 1.7.1998; this post
was not available on 18.7.1994 and so the respondent
could not make any claim for appointment to the said post
pursuant to the policy dated 18.7.1994, that too after it
was revised on 2.6.1998; (3) as per the revised policy
dated 1.5.5.1998 and 2.6.1998, the respondent was not
eligible for appointment as he did not satisfy the eligibility
conditions and (4) the respondent could not claim
appointment as a matter of right under the scheme. The
scheme itself was to give some concession in the matter of
appointment.
Per contra, the learned counsel for the respondent
made submissions supporting the impugned judgment.
According to him, the name of the respondent having been
recommended for appointment pursuant to the Office Order
dated 18.7.1994, the appellant-Board was not right in
denying appointment to him when several others from the
same list were appointed; the policy in regard to
appointment on priority basis could not be varied
subsequently to the disadvantage of the respondent so as
to take away his vested right and the appellant-Board has
made discrimination unjustifiably in denying appointment to
the respondent.
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Having considered the respective submissions made
by the learned counsel for the parties, we are of the view
that the High Court committed an error in proceeding on
the basis that the respondent had got a vested right for
appointment and that could not have been taken away by
the subsequent change in the policy. It is settled law that
mere inclusion of name of a candidate in the select list does
not confer on such candidate any vested right to get an
order of appointment. This position is made clear in para 7
of the Constitution Bench judgment of this Court in
Shankarsan Dash vs. Union of India [(1991) 3 SCC 47]
which reads:-
"7. 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 State of Haryana v. Subhash
Chander Marwaha ((1974) 3 SCC 220 : 1973
SCC (L&S) 488 : (1974) 1 SCR 165), Neelima
Shangla v. State of Haryana ((1986) 4 SCC 268
: 1986 SCC (L&S) 759), or Jatendra Kumar v.
State of Punjab ((1985) 1 SCC 122 : 1985 SCC
(L&S) 174 : (1985) 1 SCR 899)".
The same position is reiterated and followed by this
Court in All India SC & ST Employees’ Assn. & Anr. vs.
A. Arthur Jeen & Ors. [(2001) 6 SCC 380] and State of
Oriss and Ors. Vs. Bhikari Charan Khuntia and Ors.
[(2003) 10 SCC 144].
It is not disputed that neither homeopathic dispensary
at Lehra Mohabbat power station nor a post of Homeopathic
Physician was available on 18.7.1994. The decision to set
up a homeopathic dispensary at Lehra Mohabbat and to
create a post of Homeopathic Physician in the dispensary
was taken only on 1.7.1998 long after the policy decision
dated 18.7.1994 and subsequent to the change in the policy
dated 15.5.1998 and 2.6.1998. This being the position, the
question of the respondent seeking for appointment to the
said post pursuant to policy decision of 18.7.1994 itself did
not arise. At any rate, there could be no vested right in
him to claim the appointment to the said post. The High
Court also committed an error in taking a view that the
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policy decision of 2.6.1998 could not have retrospective
application to the disadvantage of the respondent. There is
no question of applying the policy retrospectively. On
17.9.1998 when the names of suitable candidates were
sought from the employment exchange pursuant to the
decision of the Board dated 1.7.1998, it could not be said
that the right of the respondent was taken away when he
did not have any such vested right to get an appointment to
Class-II post of Homeopathic Physician. It may also be
added that the respondent was not eligible to claim
appointment on priority basis having regard to the changed
policy from 2.6.1998 inasmuch as the land acquired from
him was less than 2 acres and he was also over-aged as on
17.9.1998. The revised policy made the position clear that
there could be no relaxation in regard to qualification and
the age limit. Further the scheme was devised on
18.7.1994 and subsequently it was revised only as a
concession to give a helping hand as far as possible to
rehabilitate the displaced families whose lands were
acquired. The respondent has got compensation for his
land which was acquired. The scheme giving appointment
on priority basis was only in the nature of concession to
eligible candidates which the respondent could not claim as
a matter of right having taken compensation amount for his
land which was acquired, more so when he did not fulfill the
necessary requirements under the revised scheme. The
High Court in the impugned order has observed that
"Obviously, if the effort of the respondent is to deny to the
petitioner the job that he seeks in the present case on the
ground that he is overage, action of the respondents cannot
but be termed as discriminatory." This observation is not
based on proper foundation or facts. It is not a case where
any mala fide is alleged against the appellant or its officers.
There is nothing to show that anybody was bent upon
denying the appointment to the respondent.
In the light of what is stated above, it is clear that the
respondent was not entitled for an appointment. The High
Court was not right in directing the appellant-Board to
appoint the respondent to the post of Homeopathic
Physician. During the course of arguments, we asked the
learned counsel for the respondent whether the respondent
is willing to join in any of the available vacancies even now.
On instructions from the respondent, the learned counsel
submitted that the respondent is only interested in getting
the appointment to the post of Homeopathic Physician and
not any other post covered by the scheme.
In view of what is stated above and having regard to
all aspects of the matter, we find that the impugned order
cannot be sustained. Hence, the appeal is entitled to
succeed. Accordingly, it is allowed and the impugned
judgment is set aside. The writ petition filed by the
respondent is dismissed. No costs.