Judgment:
Prem Shanker Asopa, J.
1. By this writ petition, the petitioner is seeking an appropriate to the post of Physical training Instructor Grade III.
2. The facts in brief of the case, as per the petitioner, are that an advertisement dated 17.5.1997 was issued for appointment on eight vacancies of Physical Training Instructor Grade-Ill. As per the petitioner, out of the aforesaid eight vacancies, four posts were reserved for candidates belonging to reserve category, one post each for SC and ST and two posts for candidates belonging to OBC. After interview, the merit list was prepared in which name of the petitioner stood at No. 1 of ST candidates. Case of the petitioner is that his name being at merit No. 1 in the list of ST candidates he is entitled to appointment but the same has not been given to him illegally.
3. Respondents have filed reply to the writ petition and stated that out of aforesaid eight vacancies, four candidates have been given appointment and for remaining persons a letter was written to the Director for obtaining sanction which was not received and further the State Government imposed ban on new appointments w.e.f. 10.3.1999 and validity of the merit list expired on 31.3.1999.
4. Submission of the counsel for the petitioner is that the Government cannot be allowed to act arbitrarily particularly when out of the eight posts advertised, one post was reserved for ST candidate and hence, there appears to be no justification for not operating the merit list for ST candidates and operating the same for candidates belonging to other categories. Government has in fact adopted method of pick and choose. For the posts advertised, no further sanction is required and the ban imposed by the Government on new appointments cannot be allowed to prejudice petitioner's case on account of the fact that the merit list was operated for others and otherwise also the operation of the rule cannot be stayed by imposing ban on new appointments. As regards validity of the merit list, the same did not expire on account of any fault on the part of the petitioner, therefore, the petitioner cannot be made to suffer for no fault on his part.
5. Submission of Dr. Khangarot, Addl. GA is that since the sanction was not received, on account of ban imposed on 10.3.1999 appointment was not given to the petitioner and in the meantime, the merit list expired on 31.3.1999.
6. I have gone through record of the case and further considered rival submission of the parties.
7. Counsel for the petitioner has placed reliance on a judgment of the Supreme Court in Mrs. Asha Kaul and Anr. v. State of Jammu and Kashmir and Ors. (SC) (1993(2) SLR 560) on the issue that the Government cannot be allowed to pick and choose out of the selected candidates. Relevant portion of paras 6 and 7 of the judgment reads as under:
6. It is true that the government is the appointing authority for the munsifs but it is misleading to assert that in the matter of selection and appointment the government has an absolute power. Such an argument does violence to the constitutional scheme....
Construed in the above...This provision too militates against the theory of absolute power in the government to disapprove or reject the recommendations of the commission. For the same reason, it must be held that the government cannot pick and choose candidates out of the list. Of course, where in respect of any particular candidate any material is discovered disclosing his involvement in any criminal activity, the government can always refuse to appoint such person but this would not be a case touching the select list prepared and recommended by the commission. It is equally not open to the government to approve a part of the list and disapprove the balance. In this case, it may be remembered that the government itself had asked for a list of twenty and the commission had sent a list of twenty, (we are not concerned with the waiting list sent by the commission, at this stage). It could not have been approved in part and rejected in part. The number of vacancies available on the date of approval and publication of the list is not material. By merely approving the list of twenty, there was no obligation upon the government to appoint them forthwith. Their appointment depended upon the availability of vacancies. A reading of Rule 41 makes this aspect clear. The list remains valid for one year from the date of its approval and publication. If within such one year, any of the candidates therein is not appointed, the list lapses and a fresh list has to be prepared. In this case, no doubt, a number of complaints appears to have been received by the government about the selection process. We have seen the note file placed before us. It refers to certain facts and complaints. But if the government wanted to disapprove or reject the list, it ought to have done so within a reasonable time of the receipt of the select list and for reasons to be recorded. Not having done that and having approved the list partly (thirteen out of twenty names), they cannot put forward any ground for not approving the remaining list. Indeed, when it approved the list to the extent of thirteen, it ought to have approved the entire list of twenty or to have disapproved the entire list of twenty. The objections, the government have pertains to the very process of selection i.e., to the entire list, and not individually to any of the remaining seven candidates.
8. He further place reliance on a Constitutional Bench judgment in Shankarsan Dash v. Union of India (SC) 1991 (2) SLR 779 where in para 7 it has been held that the State is under no legal duty to fill all the posts but it does not mean that the State has a licence for acting in an arbitrary manner. The State Government is further bound to respect the comparative merit and no discrimination can be permitted. Relevant portion of para 7 of the judgment reads as under:
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.
9. On the issue of expiry of the merit list, counsel for the petitioner has cited judgment of the Supreme Court in Purshottam v. M.P. State Electricity Board : (1999)6SCC49 wherein it has been held that the State cannot be allowed to take the plea of expiry of the list and filling of the said posts by other candidates for the reason that the list expired on account of fault of the government of not making appointments in time. Relevant para 4 of the said judgment reads as follows:
4. In view of the rival submission the question that arises for consideration is whether a duly-selected person for being appointed and illegally kept out of employment on account of untenable decision on the part of the employer, can be denied the said appointment on the ground that the panel has expired in the meantime. We find sufficient force in the contention of Mr. Deshpande appearing for the appellant inasmuch as there is no dispute that the appellant was duly selected and was entitled to be appointed to the post but for the illegal decision of the screening committee which decision in the meantime has been reversed by the High Court and that decision of the High Court has reached its finality. The right of the appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. In that view of the matter, the appellant's right to be appointed to the post has been illegally taken away by the employer. We, therefore, set aside the impugned order and judgment of the High Court and direct the Maharashtra State Electricity Board to appoint the appellant to the post for which he was duly selected within two months from today. We make it clear that appointment would be prospective in nature.
10. After considering the entire material on record as well as the aforesaid judgments, the normal rule is that sanction for filing the posts is to be obtained before issuance of the advertisement and not after the completion of the selection process. I am of the view that the respondents' inaction to operate the merit list for ST candidates on the pretext for want of sanction in the case where advertisement was issued was arbitrary. As regards the administrative ban, the same will not stay operation of the Rules and even if some ban is imposed by the State Government then it is applicable to all appointments and not on few of same merit lit and further ban is imposed on all appointments of same list then operation of such ban cannot be allowed to prejudice rights of the parties when it is lifted. I am further of the view that the merit list was stated to have expired on account of not receipt of sanction and imposition of ban which are government acts/omissions and therefore, the candidate who has a right to be considered for appointment will not be affected in any manner on account of the expiry of the merit list which expired because of the fault of the Government.
11. In view of the above, the writ petition is allowed and the respondents are directed to consider case of the petitioner for appointment to the post of Physical Training Instructor Grade-Ill and give appointment with effect from the date when the merit list in pursuance to the advertisement dated 17.5.1997 was first operated, with all consequential benefits and notional fixation of pay, except arrears of salary.