| SooperKanoon Citation | sooperkanoon.com/430372 |
| Subject | Service |
| Court | Andhra Pradesh High Court |
| Decided On | Mar-26-2009 |
| Case Number | Writ Petition No. 8573 of 2008 |
| Judge | Ghulam Mohammed and ;B. Seshasayana Reddy, JJ. |
| Reported in | 2009(3)ALT350 |
| Acts | Constitution of India - Articles 14, 16 and 21; Andhra Pradesh Prohibition and Excise Subordinate Service Rules - Rule 3; Andhra Pradesh Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975 |
| Appellant | M. Lookas Babu and ors. |
| Respondent | State of A.P. Rep. by Its Principal Secretary, Revenue Department and ors. |
| Appellant Advocate | P.V. Krishnaiah, Adv. |
| Respondent Advocate | G.P. for Services II for Respondent Nos. 1 and 2 and ;V. Brahmaiah Chowdhary, Adv. for Respondent Nos. 5 to 29 |
Excerpt:
- - 4. not satisfied with the said direction, as the tribunal directed only consideration of their cases for any future selections, if they are otherwise eligible for such posts, approached this court by filing writ petitions being wp no. however, the said committee recommended to treat the apsp constables working on deputation in prohibition and excise department as surplus in police department. that the said committee after examining the issue recommended to treat the apsp constables working on deputation as surplus in police department. 1103, revenue (excise-i) department, dated 17-8-2007 declaring the apsp constables on deputation to prohibition and excise department as surplus and directing absorption in the excise department is bad in law and violative of presidential order and rule 3, read with note 3 of the special rules. in the light of the facts that we have stated above, when it was open to the government to take a policy decision, we fail to understand as to how the respondents can dub the action of the respondents (sic appellants) as arbitrary, particularly, when they did not have any right as such to claim appointments. 23. the petitioners herein are not parties to the oas filed on the earlier occasion by the similarly situated candidates like that of the petitioners but, the fact remains that the validity or otherwise of government memo dated 21-12-1994 by which the process of recruitment of 1751 excise constables is cancelled was considered by the tribunal, in writ petitions by this court and in appeals by the supreme court and the legality of government memo dated 21-12-1994 was upheld and, therefore, it is not open for the petitioners herein to once again call upon this court to consider the legality or otherwise of the said memo dated 21-12-1994. the contention of the petitioners is that inasmuch as the petitioners are not parties to the appeals filed by the government before the supreme court, the directions work out only against the parties therein and cannot come in the way of the petitioners agitating for their rights and for this proposition, he relied on the constitutional bench decisio writ petitions 161 and 162 of 1961 were by 'junior teachers' like the respondent, while amrik singh petitioner in the remaining petition (petition 163 of 1961) was a head master among the 'provincialised' teachers. 1103, revenue (excise-i) department, dated 17-8-2007 declaring the apsp constables on deputation to prohibition and excise department as surplus and directing absorption in the excise department is bad in law and violative of presidential order and rule 3, read with note 3 of the special rules. however, the said committee recommended to treat the apsp constables working on deputation in prohibition and excise department as surplus in police department and in consequence of the recommendations of the said committee the government issued go ms. however, the said committee recommended to treat the apsp constables working on deputation in prohibition and excise department as surplus in police department. similarly, it is well open and within the competency of the state to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. likewise, the state by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. it has been held in the said decision that an aggrieved person was entitled to judicial review if he could show that a decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he was given reasons for withdrawal and the opportunity to comment on such reasons. 46. the doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do page 4655 until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; as a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above 'fairness in action' but far below 'promissory estoppel'.it may only entitle an expectant:orderghulam mohammed, j.1. the petitioners in wps 8573 and 10432 of 2008 are parties to oas 4927 of 2007 & 6970 of 2004 and the petitioners in other three writ petitions have filed these writ petitions by obtaining leave of the court. batch of oas including the above oas were disposed of by the ap administrative tribunal, hyderabad, by judgment dated 10-4-2008. the petitioners in all these writ petitions assail the action of the respondents in not filling up the vacancies (excise constables) reserved for direct recruitment and filling up the said vacancies by the andhra pradesh special police (apsp) constables on deputation as being arbitrary, illegal and unconstitutional violating articles 14, 16 and 21 of the constitution and ultra virus to rule 3, read with note 3 of ap prohibition and excise subordinate service rules (for short, 'the special rules') and to set aside the common judgment dated 10-4-2008 passed in oa no. 6391 of 2004 and batch and consequently direct the official respondents to consider their cases and other similarly placed candidates for appointment as excise constables before making any fresh recruitment in respect of the said posts. the petitioners also assail go ms. no. 1103, revenue (excise-i) department, dated 17-8-2007 declaring the apsp constables who are on deputation to prohibition & excise department as surplus in police department and their absorption as prohibition & excise constables in the existing vacancies in prohibition & excise department as being illegal and violative of the provisions of the presidential order and the deputation of the apsp constables as prohibition and excise constables beyond the maximum period of five years is contrary to guidelines issued in go (p) no. 10, finance & planning (fw.fr.ii) department, dated 22-1-1993 and, therefore are liable to be repatriated to their parent department.2. the facts of the case are: the state government vide go rt. no. 1303, rev. (ex.i), department, dated 31-8-1994 permitted the commissioner of prohibition and excise to take up recruitment for filling up 1751 posts of prohibition and excise constables and accordingly a notification was issued for recruitment to the said posts. pursuant to the notification, physical and written tests were conducted in the year 1994 and interview for those candidates who were successful in physical and written tests was conducted by a selection committee, constituted for that purpose, between 19-10-1994 and 23-10-1994. but on account of announcement of general elections to the ap legislative assembly and as the election notification was issued on 1-11-1994, the election code has come into force, the recruitment process was stopped and the results of oral interview was not declared and no select list was published.3. in view of the decision taken by the government to introduce total prohibition in the state of andhra pradesh, the government vide memo. no. 67587/ex.l/94-3, dated 21-12-1994, cancelled the process of recruitment of 1751 of excise constables. some of the aspiring candidates who have come up to the stage of oral interview for the said posts, approached the ap administrative tribunal assailing the said cancellation of the selection in oa no. 215 of 1995 and batch. the tribunal by order dated 16-3-1999 disposed of the said oa no. 215 of 1995 and batch directing the state government to consider the request of the candidates for appointment in any future selections, if they are otherwise eligible for such posts.4. not satisfied with the said direction, as the tribunal directed only consideration of their cases for any future selections, if they are otherwise eligible for such posts, approached this court by filing writ petitions being wp no. 12633 of 1999 and batch. a division bench of this court by order dated 23-6-1999 disposed of the said writ petitions with a direction to the state government that as and when the government takes a decision to fill up the vacancies, the case of those candidates should be considered for appointment in the existing vacancies having regard to their ranking in their merit list. aggrieved by the same, the state carried the matter in appeal in civil appeals against the writ petitions filed by the candidates from kurnool and karimnagar regions before the apex court, being civil appeal nos. 604 and 915 of 2000 and the said civil appeals were disposed of by the apex court by order dated 23-4-2003. the supreme court directed that as and when any fresh selection takes place to the posts of excise constables, the applicants-respondents therein may apply for regular recruitment, and in that event, age bar will not be put against them, but they shall satisfy other eligibility conditions and requirements, including qualifications.5. it is relevant to note that in the year 1993, the government issued go ms. no. 927, revenue department, dated 21-9-1993, according sanction for creating 3000 posts of apsp constables to be on the strength of 9 apsp battalions to depute them to prohibition and excise department for effective implementation of prohibition in the state, modified in go ms. no. 467, revenue (ex.iii) department, dated 23-5-1994, restricting the strength to 2151. accordingly a notification was issued for their recruitment in rc. no. 224/r&t;/admn.2/94, dated 6-7-1994 by the state level police recruitment board. the strength of apsp constables selected and deputed in prohibition & excise department was 2151. subsequently it was considered to repatriate the apsp constables to their parent department and accordingly the government issued memo no. 32167/ex.(2)/2004-06, dated 8-6-2005 to repatriate all the apsp constables in a phased manner as they could not be absorbed in the prohibition & excise department in view of the presidential order, by putting them to short training programme and utilize their services in apsp i.e. their parent department. it is stated that under this memo, the commissioner of prohibition & excise was requested to repatriate 1/3rd of the longest serving apsp constables to each district at the end of september, 2005 and the 2nd and 3rd batches in the months of march, 2006 and september, 2006 and recruit prohibition & excise constables immediately. however, this memo dated 8-6-2005 was kept in abeyance by the government by issuing memo no. 32167/ex.(2)/2004, dated 27-7-2005. it appears the director general & inspector general of police expressed an opinion to the effect that the apsp constables working on deputation basis for a considerable time in excise department were not fit for redeployment, suggested for permanent absorption in excise department. thereafter, the government in go rt. no. 894, revenue (excise.i) department, dated 29-4-2006, constituted a committee to work out the modalities for implementation of the scheme for absorption of apsp constables in excise department within the spirit of the presidential order, communal reservations, without affecting the interests of feeder category. however, the said committee recommended to treat the apsp constables working on deputation in prohibition and excise department as surplus in police department. thereafter, the government issued go ms. no. 1103, revenue (excise-i) department, dated 17-8-2007 declaring 2151 apsp constables working in prohibition and excise department on deputation as surplus in police department and decided to absorb them as prohibition & excise constables in the existing vacancies in prohibition and excise department in accordance with the presidential order and the relevant rules after obtaining the option from the apsp constables.6. counter affidavit is filed by the deputy secretary to government, revenue (excise.i) department, hyderabad, on behalf of the official respondents, wherein it is stated that the state government issued notification containing guidelines and procedure for recruitment to 1751 posts of excise constables and pursuant to the government orders, the commissioner of prohibition and excise notified the vacancies to the employment exchange initiating the process of recruitment. after conducting physical and written test, dates for interview were scheduled between 19-10-1994 and 23-10-1994 and for verification of original certificates between 25-10-1994 and 29-10-1994, but no select list was published by the appointing authority i.e. prohibition & excise superintendents. that thereafter on account of announcement of general elections to the legislative assembly, recruitment process was stopped as election notification was issued on 1-11-1994. it is further stated that in the light of the decision of the government to introduce total prohibition in the state, the process of recruitment of 1751 excise constables was cancelled vide memo no. 67587/ex.l/94-3, dated 21-12-1994 and against these orders some of the candidates approached the ap administrative tribunal and tribunal by its common order dated 16-3-1999 directed the state government to consider the request of the selected excise constables in preference to raw-recruits for any future selections, if they are otherwise eligible for such posts. the matter was further carried to this court and this court in a batch of writ petitions directed that if the government comes to the conclusion that it is necessary to fill up the posts of excise constables, then the case of the petitioners therein be considered for appointment as excise constables in the existing vacancies having regard to the ranking in the merit list. that the government carried the matter to the supreme court and the supreme court directed that as and when any fresh selection takes place to the posts of excise constables, the applicants-respondents therein may apply for regular recruitment, and in that event, age bar will not be put against them, but they shall satisfy other eligibility conditions and requirements, including qualifications. that the services of home guards and armed reserve police were utilized in the excise department as and when required for conducting raids in crime prone areas on deputation. that the government decided to introduce prohibition in a phased manner and introduced partial prohibition w.e.f. 1-10-1993 by banning arrack. subsequently, the government took decision to implement total prohibition and therefore the government issued go ms. no. 467, revenue (ex.iii) department, dated 23-5-1994 according sanction for 3000 posts of apsp constables to be on the strength of 9 apsp battalions for deputing them to the excise department after imparting necessary training. in pursuance of the orders of the government, the state level police recruitment board issued notification for recruitment of 3000 apsp constables. on recruitment, 2500 constables were deputed to excise department in the year 1994 and at present total 2192 apsp constables are working on deputation in prohibition and excise department. it is further stated that the post of apsp constable is a state wide post whereas the post of prohibition and excise constable is a district cadre post, but most of the apsp constables who are working on deputation with excise department are working at their native districts only. that the government as a policy decision is continuing the apsp constables on the deputation who had been appointed by the police department in their own scale of pay. it is further stated that the government after careful examination has issued orders in go ms. no. 1103, revenue (ex-i) department, dated 17-8-2007 to absorb the apsp constables working on deputation as prohibition and excise constables after declaring them as surplus in police department, duly following the instructions issued in andhra pradesh public employment (organization of local cadres and regulation of direct recruitment) order, 1975, and other relevant rules which are in vogue scrupulously after obtaining unequivocal/irrevocable option from the apsp constables to the effect that they are willing to accept the scale of pay of prohibition & excise constables. that consequent on introduction of the total prohibition, the government has restructured the excise department in go ms. no. 558, revenue (ex.11) department, dated 31-10-1995 and 2742 excise constables posts were abolished and the vacancies that were notified for recruitment in 1994 are no more in existence. that the government is taking steps to fill up existing vacancies of prohibition and excise constables that arose subsequently by way of direct recruitment and as per the order of the supreme court referred to above, the case of the petitioners will be considered without reference to their age as on the date of filling up the vacancies. that the memo dated 21-12-1994 issued by the government cancelling the recruitment process has not been quashed neither (sic. either) by the ap administrative tribunal nor (sic. or) by this court or by the supreme court and in this view of the matter the writ petitions are liable to be dismissed.7. some of the apsp constables who are impleaded as party respondents in these cases filed counter affidavit to the effect that the petitioners have no locus standi to challenge their absorption in the excise department. it is stated that the government issued orders vide go ms. no. 467, dated 23-5-1994 for recruitment of 3000 posts of apsp constables on the strength of 9 apsp battalions and to depute them to work in the excise department and after imparting necessary training, 2500 constables were deputed to excise department in the year 1994 and at present 2192 apsp constables are working on deputation in prohibition and excise department. that the post of apsp constable is outside purview of six point formula, whereas the post of prohibition and excise constable is district cadre post, but most of the apsp constables working on deputation in excise department are working at their native districts. it is further stated the apsp constables who have put in more than three years of service shall be repatriated to their parent department, but the director general and inspector general of police stated that the apsp constables who are working on deputation in excise department from 1994 i.e. nearly 14 years, are not fit for re-deployment in the apsp and suggested for their permanent absorption in the excise department. that pursuant thereto, the government after careful consideration of the matter, constituted a committee to work out the modalities for implementation of the scheme for absorption of apsp constables in excise department within the spirit of presidential order, communal reservations, without affecting the interests of feeder category and promotional avenues of the departmental excise constables. that the said committee after examining the issue recommended to treat the apsp constables working on deputation as surplus in police department. that the government after examination of the entire issue declared the 2151 apsp constables who are working on deputation as surplus and directed that they be absorbed as prohibition and excise constables duly following presidential order and the relevant rules in vogue after obtaining unequivocal and irrevocable option from the apsp constables to the effect that they are willing to accept the scale or pay of prohibition and excise constables. that absorption of the apsp constables in excise department is neither infringement of any fundamental right nor of a statutory rule nor any civil right of the petitioners. it is also stated that go ms. no. 1103, revenue (excise-1) department, dated 17-8-2007 cannot be said to be illegal or arbitrary as the posts held by the party respondents are much prior to the 1994 notification and the policy decision of the government to absorb the apsp constables is within the power of the government and it cannot be assailed as infringing a non-existing right of the petitioners.8. heard sri pv krishnaiah, the learned counsel for the petitioners, sri b. adinaranaya rao, the learned counsel representing sri v. brahmaiah chowdary, learned counsel for the party respondents and the learned government pleader for services-ii.9. sri pv krishnaiah, learned counsel for the petitioners strenuously contended that go ms. no. 1103, revenue (excise-i) department, dated 17-8-2007 declaring the apsp constables on deputation to prohibition and excise department as surplus and directing absorption in the excise department is bad in law and violative of presidential order and rule 3, read with note 3 of the special rules. learned counsel further contended that the process of recruitment of 1751 excise constables cancelled vide memo no. 67587/ex.l/94-3, dated 21-12-1994 by the government was not a bonafide action and it was done in an arbitrary and biased manner to accommodate the apsp constables. it is contended that the memo dated 21-12-1994 does not disclose any reasons and such arbitrary cancellation not based on valid reason without bonafide interest is subject to judicial scrutiny. it is further contended that the government because of the introduction of prohibition, at the relevant time, has not reduced the cadre strength of the posts nor abolished the posts and the posts notified being substantive posts ought not to have been cancelled without assigning any reasons. it is also contended that recruitment to the posts of excise constables must be resorted to either by direct recruitment or recruitment by transfer and the government cannot adopt any other mode and inasmuch as the petitioners are selected and only appointment orders could not be issued, the government in all fairness should come forward to do justice to them and appoint them in the existing vacancies. learned counsel stated that inasmuch as the petitioners herein are not parties to the appeals filed by the government before the supreme court, the directions given by the supreme court to give age relaxation to the party respondents therein, as and when fresh selection takes place to the posts of excise constables, must be confined to the parties therein and the said directions cannot come in the way of the petitioners agitating for their rights. it is contended that abolition of posts can only be done in case where the department is down seized or closed down and such is not the situation in the instant case. learned counsel lastly contended that deputation of the apsp constables to the excise department beyond the maximum period of five years is impermissible in view of go (p) no. 10, finance & planning (fw.fr.ii) department, dated 22-1-1993 and after completion of five years on deputation, there is no power at all to the government to extend the deputation and all these aspects of the matter are not properly appreciated by the tribunal and, therefore, the impugned judgment is liable to be set aside and the writ petitions deserve to be allowed.10. in support of his contentions, learned counsel relied on the decisions in jitendra kumar v. state of haryana : (2008)2scc161 , subha p. nair v. state of kerala : (2008)7scc210 , k.v. subba rao v. government of andhra pradesh : [1988]2scr1118 secretary, state of karnataka v. uma devi : (2006)iillj722sc , official liquidator v. dayanand : (2009)iiillj305sc , all india sc/st employees associaton v. arthur jeen 2001 (3) supreme 427 : 2001 (4) alt 6.2 (dnsc) and neelima shangla v. state of haryana : [1986]3scr785 .11. sri b. adinarayana rao, learned counsel appearing for the party respondents submitted that the petitioners who are not at all employees muchless selectee candidates have no locus standi to question the absorption of the apsp constables under go ms. no. 1103, revenue (excise.i) department, dated 17-8-2007. it is also submitted that the petitioners are under an illusion that their selection is finalized, but the fact situation remains that the select list was not published by the appointing authority and, therefore, they are not aggrieved parties. it is also contended that absorption of the apsp constables in excise department is neither infringement of any fundamental right nor of a statutory rule nor any civil right of the petitioners. it is stated that go ms. no. 1103, revenue (excise-1) department, dated 17-8-2007 cannot be said to be illegal or arbitrary as the posts held by the party respondents are much prior to the 1994 notification and the policy decision of the government to absorb the apsp constables is within the power of the government and it cannot be assailed as infringing a non-existing right of the petitioners.12. learned government pleader for services-ii also contended that the petitioners who are neither employees nor selectee candidates cannot question the deputation of the apsp constables and they have no locus standi to question the absorption of the apsp constables. it is also contended that there is no pleading to the effect that the petitioners have no knowledge of the apex court's order passed in the appeals filed by the government and when once there is no pleading taken by the petitioners to that effect taken before the tribunal, the decision of the apex court given in the appeals filed by the government against the writ petitions filed by the candidates from the kurnool and karimnagar region is binding on the petitioners as the subject matter is one and the same in all these matters. it is also submitted that the government after careful examination of the matter and also in the light of the view expressed by the director general and inspector general of police that apsp constables on deputation in excise department from 1994 i.e. nearly 14 years, not fit for re-deployment in the apsp, declared the 2151 apsp constables as surplus and directed them to be absorbed as prohibition and excise constables duly following presidential order and the relevant rules in vogue after obtaining unequivocal and irrevocable option that they are willing to accept the scale of pay of prohibition and excise constables. in support of his contention learned government pleader relied on the decision of the apex court in pu joshi v. accountant general, ahmedabad : [2002]supp5scr573 .13. mainly two core issues are involved in these writ petitions, firstly whether the petitioners who are neither employees nor selectee candidates have locus standi to question the absorption of apsp constables in the excise department consequent upon declaring them as surplus in the parent department i.e. police department; and secondly whether the process of recruitment of 1751 excise constables cancelled by the government vide memo no. 67587/ex.l/94-3, dated 21-12-1994, was a bona-fide action or was done in a biased manner to accommodate the apsp constables, as alleged by the petitioners' counsel.14. the state government vide go rt. no. 1303, rev. (ex.l), department, dated 31-8-1994 permitted the commissioner of prohibition and excise to take up recruitment for filling up of 1751 posts of prohibition and excise constables and accordingly a notification was issued for recruitment to the said posts. the government also constituted district level selection committee with the concerned district collectors as chairman, dy. commissioner of excise of the division and superintendent of police/addl. superintendent of police as members and excise superintendent as convenor, pursuant to the notification, physical and written tests were conducted in the year 1994 and interview for those candidates who were successful in physical and written tests was conducted by a selection committee, constituted for that purpose, between 19-10-1994 and 23-10-1994. but on account of announcement of general elections to the ap legislative assembly and the election notification was issued on 1-11-1994, the election code has come into force, the recruitment process was stopped and the results of oral interview was not declared and no select list was published and in view of the decision taken by the government to introduce total prohibition in the state of andhra pradesh, the government vide memo. no. 67587/ex.l/94-3, dated 21-12-1994, cancelled the process of recruitment of 1715 of excise constables. the memo dated 21-12-1994 reads thus:government of andhra pradesh revenue departmentmemorandum no. 67587-excise-1/94-3dated 21-12-1994sub: new excise policy-recruitment of excise constables-orders issued in go ms. no. 927, revenue, dated 21-9-1993 and go rt. no. 1303, rev., dated 31-8-1994-certain revised instructions issued.ref: 1. go ms. no. 927, revenue, dated 21-9-19932. go rt. no. 1303, revenue, dated 31-8-19943. from the commissioner of excise do ietter cr. no. 28888/93/ex/h3, dated 13-12-1994.the attention of the commissioner of excise is invited to the references cited and he is informed that after careful examination of the matter and in the context of immediate introduction of total prohibition, the orders issued in the go first cited are kept in abeyance. consequently, the commissioner of excise is requested to countermand and cancel the process initiated for the recruitment of 1751 posts of excise constables referred to in the go second.the action taken in the matter may be reported to government urgently. tr prasadprincipal secretary togovernmenttothe commissioner of excise,hyderabad//forwarded : by order//sd/-section officer15. pursuant to the above memo dated 21-12-1994 issued by the government, the commissioner of excise by proceedings cr. no. 28888/93/ex.h3, dated 22-12-1994 directed all the collectors and excise superintendents to countermand and cancel the process initiated for the recruitment of excise constables immediately. the reason that was assigned to countermand and cancel the process of recruitment of 1751 posts of excise constables was in the context of immediate introduction of total prohibition in the state of andhra pradesh. it is a matter of fact that the government lifted prohibition in the year 1997 and there was a change in the prohibition policy. it is true that the petitioners participated in physical and written tests for the said posts conducted by the selection committee, and on being successful in those tests they were called for interviews but, admittedly no select list was published and the process of recruitment is said to be not completed. the contention of the learned counsel for the petitioners that the government memo dated 21-12-1994 to countermand and cancel the process of recruitment of 1751 posts of excise constables was done to accommodate the apsp constables cannot be appreciated because merely vacancies are notified and the selection process has come to a stage, the state is not obliged to fill all the vacancies notified, unless there is some provision to the contrary in the applicable rules. the decision to fill up or not to fill up a post, is a policy decision of the government and unless it is infected with the vice of arbitrariness, scope for interference in judicial review is narrow and limited. but the other aspect of the matter that is to be observed is the obligation of the government to act fairly. it is relevant to notice some of the precedents operating in the field.16. in shankarsan dash v. union of india : (1992)iillj18sc the apex court at para 7 held thus: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.17. in asha kaul v. state of j and k : (1993)2scc573 the apex court at para 8 held thus:8 it is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment (state of haryana v. subhash chander marwaha; mani subrat jain v. state of haryana, state of kerala v. a. lakshmikutty) but that is only one aspect of the matter. the other aspect is the obligation of the government to act fairly. the whole exercise cannot be reduced to a farce. having sent a requisition/request to the commission to select a particular number of candidates for a particular category, in pursuance of which the commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the government the government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. we do not think that any government can adopt such a stand with any justification.18. in rs mittal v. union of india : 1995(2)scale433 the apex court at para 10 held thus:10. ...it is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. he has a right to be considered for appointment. but at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. when a person has been selected by the selection board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. there has to be a justifiable reason to decline to appoint a person who is on the select panel. in the present case, there has been a mere inaction on the part of the government. no reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. the appointment should have been offered to mr. murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. the central government's approach in this case was wholly unjustified.19. in subha p. nair's case (supra), the apex court at para 7 held thus:7. a decision on the part of an employer whether to fill up the existing vacancies or not is within its domain. on this limited ground in absence of discrimination or arbitrariness, a writ court ordinarily would not interfere in such matters. this has been so held by this court in deepa keyes v. kerala state electricity board (2007) 6 scc 194 observing that the rank list having expired and the validity having not been extended, no relief could be granted to the appellants therein.20. in paras 41 & 70 of the decision by three-judge bench of the apex court in official liquidator's case (supra) reads thus:41. the creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source and mode of recruitment and qualifications and criteria of selection etc. are matters which fall within the exclusive domain of the employer. although the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode of recruitment and lay down the qualification etc. is not immune from judicial review, the court will always be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. the court cannot sit in appeal over the judgment of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. the power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by malafides.70. we are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. the learned single judges and benches of the high courts refuse to follow and accept the verdict and law laid down by coordinate and even larger benches by citing minor difference in the facts as the ground for doing so. therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. it must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed. we may add that in our constitutional set up every citizen is under a duty to abide by the constitution and respect its ideals and institutions. those who have been entrusted with the task of administering the system and operating various constituents of the state and who take oath to act in accordance with the constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. this principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. discipline is sine qua non for effective and efficient functioning of the judicial system. if the courts command others to act in accordance with the provisions of the constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.21. in the instant case, the memo dated 21-12-1994 by which the process of recruitment of 1751 excise constables is cancelled was subject matter in oa no. 215 of 1995 and batch before the ap administrative tribunal. the tribunal disposed of oa no. 215 of 1995 and batch by order dated 16-3-1999, the relevant portion of the order, reads thus:admittedly, the state government have not cancelled the posts of excise constables created in the department after the change in the prohibition policy. the need for strengthening the department cannot, therefore, be said to be not available. if the state decides to strengthen the excise department by posting constables either by recruitment or by deputation, we are of the considered view that the excise constables who underwent selection process by a properly constituted selection committee against which no malafides are attributed by any one should be given preference over the fresh candidates. we, therefore, direct the state government to consider the request of the selected excise constables in preference to raw-recruits for any future selections, if they are otherwise eligible for such posts. the oas are disposed of accordingly. all the cas stand closed and all the mas. stand disposed of in view of the disposal of the main oas. no costs.22. against the above order of the tribunal, writ petitions were filed before this court in wp no. 12633 of 1999 and batch by the applicants in the batch of oas. those writ petitions were disposed of this court by order dated 23-6-1999 with a direction that as and when the government decides to fill up the vacancies, the case of the petitioners therein should be considered for appointment in the existing vacancies having regard to their ranking in their merit list. aggrieved by the same, the state carried the matter in appeal in civil appeals against the writ petitions filed by the candidates from kurnool and karimnagar regions before the apex court, being civil appeal nos. 604 and 915 of 2000. the said civil appeals were disposed of by the apex court by order dated 23-4-2003. the relevant portion of the order is thus:4. in the counter affidavit filed on behalf of the respondents in civil appeal no. 915 of 2000, in paragraph 16 it is stated that the process of selection was cancelled at the last stage, i.e. before publishing the list of selected candidates on the sole ground that the state government wanted to introduce prohibition and obviously the government felt that there was no need of excise constables during imposition of prohibition in the state. there is serious dispute as to the completion of selection process. according to the appellants, the selection process was not complete. no record has been placed before us to show that the selection process was complete, but, it is not disputed that the select list was not published. in paragraph 16 of the counter affidavit, referred above, the respondents themselves had admitted that the selection process was cancelled at the last stage. in the absence of publication of select list, we are inclined to think that the selection process was not complete. be that as it may, even if the selection process was complete and assuming that only select list was remained to be published that does not advance the case of the respondents for the simple reason that even the candidates who are selected and whose names find place in the select list, do not get vested right to claim appointment based on the select list. it was open to the state government to take a policy decision either to have prohibition or not to have prohibition in the state. certainly, the government had right to take a policy decision. if pursuant to a policy decision taken to impose prohibition in the state there was no requirement for the recruitment of constables in the excise department, nobody can insist that they must appoint candidates as excise constables. it is not the case of the respondents that there was any malafide on the part of the appellants in refusing the appointment to the respondents after the selection process was complete. the only claim was that the action of the appellants, in not appointing the respondents as excise constables, was arbitrary. in the light of the facts that we have stated above, when it was open to the government to take a policy decision, we fail to understand as to how the respondents can dub the action of the respondents (sic appellants) as arbitrary, particularly, when they did not have any right as such to claim appointments. in the absence of selection and publication of select list, mere concession or submission made by the learned government pleader on behalf of the appellant-state cannot improve the case of the respondents. similarly, such a submission cannot confer right on the respondents, which they otherwise did not have.(emphasis supplied)5. under these circumstances, we find it difficult to sustain the impugned judgment and order. however, having regard to the peculiar facts and circumstances of the case and that the respondents had the benefit of the order of the high court, we think it is just and appropriate that as and when any fresh selection takes place to the post of excise constables, the respondents may apply for regular recruitment. in that event age bar will not be put against them but, they shall satisfy other eligibility conditions and requirements, including qualifications.6. under the circumstances, the impugned orders are set aside, subject to what is stated above. the appeals are allowed accordingly. no costs.23. the petitioners herein are not parties to the oas filed on the earlier occasion by the similarly situated candidates like that of the petitioners but, the fact remains that the validity or otherwise of government memo dated 21-12-1994 by which the process of recruitment of 1751 excise constables is cancelled was considered by the tribunal, in writ petitions by this court and in appeals by the supreme court and the legality of government memo dated 21-12-1994 was upheld and, therefore, it is not open for the petitioners herein to once again call upon this court to consider the legality or otherwise of the said memo dated 21-12-1994. the contention of the petitioners is that inasmuch as the petitioners are not parties to the appeals filed by the government before the supreme court, the directions work out only against the parties therein and cannot come in the way of the petitioners agitating for their rights and for this proposition, he relied on the constitutional bench decision of the supreme court in state of punjab v. joginder singh : air1963sc913 reads thus:9. this will be a convenient stage where we might summarise briefly the provisions of the impugned rule and their impact on the right to promotion of the respondent and the other 'junior teachers' of the 'provincialised' service to which he belongs. before however, doing so it is necessary to mention a preliminary objection that was taken to the hearing of the appeal. along with the respondent jogindra singh there were three others who had filed similar petitions and sought the same relief. writ petitions 161 and 162 of 1961 were by 'junior teachers' like the respondent, while amrik singh petitioner in the remaining petition (petition 163 of 1961) was a head master among the 'provincialised' teachers. all the four petitions were dealt with together and were disposed of by a common judgment so that relief accorded to jogindra singh the respondent before us in writ application 1559 of 1960 was also granted to the other three petitioners. the state however has preferred no appeal against the orders in the other three petitions, and mr. agarwal, learned counsel for the respondent, raises the contention that as the orders in the other three petitions have become final, any order passed in this appeal at variance with the relief granted in the other three petitions would create inconsistent decrees in respect of the same matter and so we should dismiss the present appeal as incompetent. we, however, consider that this would not be the legal effect of any order passed by the court in this appeal and that there is no merit in this objection as a bar to the hearing of the appeal. in our opinion, the true position arising, if the present appeal by the state government should succeed, would be that the finality of the orders passed in the other three writ petitions by the punjab high court would not be disturbed and that those three successful petitioners would be entitled to retain the advantages which they had secured by the decision in their favour not being challenged by an appeal being filed. that however would not help the present respondent who would be bound by our judgment in this appeal and besides, so far as the general law is concerned as applicable to everyone other than the three writ petitioners (who would be entitled to the benefit of decision in their favour having attained finality), the law will be as laid down by this court. we tnerefore overrule the preliminary objection.24. there is no dispute and there cannot be any dispute with the proposition of law laid by the supreme court in the said case (supra), but the facts on hand are distinguishable. in this case, the government memo dated 21-12-1994 to countermand and cancel the process of recruitment of 1751 posts of excise constables was sustained and the only concession given to the respondents therein was as and when any tresh selection takes place to the post of excise constables, the respondents may apply for regular recruitment and in that event age bar will not be put against them but, they shall satisfy other eligibility conditions and requirements, including qualifications, the petitioners who are also part of the same selection and their selection cancelled by the same government memo dated 21-12-1994 cannot assail only by reason that they were not parties to the earlier round of litigation. that apart, the government, at the relevant time, which came into power with the avowed vow of introducing total prohibition took a decision to introduce total prohibition in the state and as consequence thereof the respondents countermanded the selection process of excise constables as according to them there was no need for additional manpower when the prohibition is introduced in the state. further, as contended by the learned government pleader for services-ii there is no pleading to the effect that the petitioners have no knowledge of the apex court's order passed in the appeals filed by the government and when once there is no pleading taken by the petitioners to that effect before the tribunal, the decision of the apex court given in the appeals filed by the government against the writ petitions filed by the candidates from the kurnool and karimnagar region is binding on the petitioners as the subject matter is same. the apex court decision in all india sc/st employees association v. arthur jeen (supra), relied on by the learned counsel for the petitioners, the facts are different. in that case the process of selection was long drawn and the candidates were made to appear for interview twice and the candidates and their families have been waiting for long time from 1995, with great hope of getting jobs and enormous money and man hours have been spent in completing the process of selection in preparing panel of selected candidates and under those circumstances it was held there was no justification for the tribunal to quash the entire panel of selected candidates. in the instant case the petitioners are not selected candidates and there was no select list published as the process of selection is said to be not complete.25. the next contention of learned counsel for the petitioners is that go ms. no. 1103, revenue (excise-i) department, dated 17-8-2007 declaring the apsp constables on deputation to prohibition and excise department as surplus and directing absorption in the excise department is bad in law and violative of presidential order and rule 3, read with note 3 of the special rules.26. the government under go ms. no. 927, revenue department, dated 21-9-1993, according sanction for creating 3000 posts of apsp constables to be on the strength of 9 apsp battalions to depute them to prohibition and excise department for effective implementation of prohibition in the state and the strength of apsp constables selected and deputed in prohibition & excise department was 2151. subsequently it was considered to repatriate the apsp constables to their parent department and accordingly the government issued memo no. 32167/ex.(2)/2004-06, dated 8-6-2005 to repatriate all the apsp constables in a phased manner as they could not be absorbed in the prohibition & excise department in view of the presidential order, by putting them to short training programme and utilize their services in apsp i.e. their parent department. however, this memo dated 8-6-2005 was kept in abeyance by the government by issuing memo no. 32167/ex.(2)/2004, dated 27-7-2005 apparently in view of the opinion expressed by the director general & inspector general of police that the apsp constables working on deputation basis for a considerable time in excise department were not fit for redeployment. thereafter, the government in go rt. no. 894, revenue (excise.i) department, dated 29-4-2006, constituted a committee to work out the modalities for implementation of the scheme for absorption of apsp constables in excise department within the spirit of the presidential order, communal reservations, without affecting the interests of feeder category. however, the said committee recommended to treat the apsp constables working on deputation in prohibition and excise department as surplus in police department and in consequence of the recommendations of the said committee the government issued go ms. no. 1103, revenue (excise-i) department, dated 17-8-2007 declaring 2151 apsp constables working in prohibition and excise department on deputation as surplus in police department and decided to absorb them as prohibition & excise constables in the existing vacancies in prohibition and excise department in accordance with the presidential order and the relevant rules after obtaining the option from the apsp constables. but the question is how the petitioners are aggrieved by the absorption of the apsp constables when they are not even selectee candidates muchless departmental excise constables. the law on this field stipulates that even a person on the select panel has no vested right to be appointed to the post for which he has been selected, and has a right to be considered for appointment. it is apropos, the extract the relevant observation made by the supreme court while disposing of the appeals filed by the government, which is thus:be that as it may, even if the selection process was complete and assuming that only select list was remained to be published that does not advance the case of the respondents for the simple reason that even the candidates who are selected and whose names find place in the select list, do not get vested right to claim appointment based on the select list. it was open to the state government to take a policy decision either to have prohibition or not to have prohibition in the state. certainly, the government had right to take a policy decision. if pursuant to a policy decision taken to impose prohibition in the state there was no requirement for the recruitment of constables in the excise department, nobody can insist that they must appoint candidates as excise constables.27. in this view of the matter it is to be held that the petitioners are not aggrieved parties and they have (sic. have no) locus standi to question go ms. no. 1103, revenue (excise. i) department, dated 17-8-2007.28. under go (p) no. 10, finance & planning (fw.f.r.ii) department, dated 22-1-1993 the maximum period of deputation is five years. the period of deputation shall be subject to a maximum of five years of which the initial period of deputation upto 3 years shall be sanctioned by the head of the department and extension, beyond the initial period of 3 years, that is for a further period upto 2 years shall be considered where public interest is involved and under no circumstances extensions beyond the specified periods will be considered by the government. the apsp constables have been working on deputation from 1994 i.e. for the last 14 years and admittedly their deputation was not extended beyond the specified period of five years. but this restriction imposed in the said go is a guideline and is in the nature of administrative instruction. the government has a prerogative right to issue a go extending the period of deputation beyond five years, in appropriate cases and where public interest is involved and there is no statutory rule prohibiting the same. it is not that any (sic. no) efforts are made by the government to repatriate the apsp constables to their parent department. in fact, the government issued memo no. 32167/ex.(2)/2004-06, dated 8-6-2005 to repatriate all the apsp constables in a phased manner as they could not be absorbed in the prohibition & excise department in view of the presidential order, by putting them to short training programme, but this memo dated 8-6-2005 was kept in abeyance by the government by issuing memo no. 32167/ex.(2)/2004, dated 27-7-2005 purportedly on the opinion expressed by the director general & inspector general of police that the apsp constables working on deputation for a considerable time in excise department were not fit for redeployment. thereafter, the government in go rt. no. 894, revenue (excise.i) department, dated 29-4-2006, constituted a committee to work out the modalities for implementation of the scheme for absorption of apsp constables in excise department within the spirit of the presidential order, communal reservations, without affecting the interests of feeder category. however, the said committee recommended to treat the apsp constables working on deputation in prohibition and excise department as surplus in police department. thereafter, the government issued go ms. no. 1103, revenue (excise-i) department, dated 17-8-2007 declaring 2151 apsp constables working in prohibition and excise department on deputation as surplus in police department and decided to absorb them as prohibition & excise constables in the existing vacancies in prohibition and excise department in accordance with the presidential order and the relevant rules after obtaining the option from the apsp constables. the apsp constables who are sought to be absorbed have no grievance for their absorption and in fact in the counter affidavit filed by them it is stated that most of them are working in their native districts and they are willing to accept the scale of pay of excise constables. in the said go ms. no. 1103, dated 17-8-2007, provision has been made protecting the interest of the departmental prohibition and excise constables and it was stipulated that on absorption of the apsp constables into prohibition and excise department their seniority shall be fixed commencing from the last candidate in the existing seniority list of the departmental prohibition & excise constables. further the government framed ad-hoc rules under go ms. no. 267, general administration (ser.a) department, dated 17-7-1998 and by virtue of the said ad-hoc rules, irrespective of the provisions in the ap state and subordinate service rules or special rules, the persons identified/declared as surplus in any government service, can be absorbed in other government departments, before resorting to direct recruitment in the vacancies, which are equivalent posts.29. it was also the contention of the learned counsel for the petitioners that the government ought not to have abolished the posts notified in the year 1994, the posts being substantive posts, this contention cannot be countenanced as no mala-fides nor the petitioners could show that the exercise undertaken to abolish the posts, in view of the change in the prohibition policy by the government is vitiated by arbitrariness or non-application of mind or the same is influenced by extraneous reasons. even otherwise, the questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled are all matters of state concern. the decision of the apex court in pu joshi v. accountant general, ahmedabad (supra), para 10 is thus:10. ...questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy and within the exclusive discretion and jurisdiction of the state, subject, of course, to the limitations or restrictions envisaged in the constitution of india and it is not for the statutory tribunals, at any rate, to direct the government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the state. similarly, it is well open and within the competency of the state to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. likewise, the state by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. there is no right in any employee of the state to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the state to amend, alter and bring into force new rules relating to even an existing service.30. the supreme court in the civil appeals filed by the government against the writ petitions filed by the candidates from kurnool and karimnagar regions directed that as and when any fresh selection takes place to the post of excise constables, the respondents may apply for regular recruitment and in that event age bar will not be put against them, but they shall satisfy other eligibility conditions and requirements including qualifications. it is stated that there is no recruitment of excise constables from 1995 onwards i.e. nearly 14 years and petitioners, being similarly placed candidates, had any (sic. no) occasion to compete for the said posts even as per the directions of the supreme court in civil appeals filed by the government. in secretary, state of karnataka v. uma devi the apex court (supra) at paras 13, 26, 33 held thus:.the state should not be allowed to depart from the normal rule and indulge in temporary employment in permanent posts. regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and appointments to non-available posts should not be taken note of for regularization. the supreme court is bound to insist on the state making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. the direction to make permanent can only encourage the state, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. it is not the role of the courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. the approving of such acts also results in depriving many of their opportunity to compete for public employment. it would also mean that appointments made or engagements given outside the constitutional scheme. the approving of such acts also results in depriving many of their opportunity to compete for public employment. it would also mean that appointments made otherwise than by a regular process of selection would become the order of the day, completely jettisoning the constitutional scheme of appointment.31. the right of a citizen to live under article 21 of the constitution casts an obligation on the state. the state is obligated to make regular recruitments and appointments and cannot transgress the rules of regular recruitment. by not resorting to regular recruitment, the legitimate expectation of the petitioners is shattered. it may be stated here that the doctrine of 'legitimate expectation' imposes in essence a duty on government to act fairly by taking into consideration all the relevant facts relating to such 'legitimate expectation.' the state and all its instrumentalities have to conform to article 14 of the constitution of which non-arbitrariness is a significant facet. the decision governing the field may be noted. in navjyothi co-op housing society v. union of india : air1993sc155 the apex court at paras 15 & 16 held thus:15. ...in the aforesaid facts, the group housing societies were entitled to 'legitimate expectation' of following consistent past practice in the matter of allotment, even though they may not have any legal right in private law to receive such treatment. the existence of 'legitimate expectation' may have a number of different consequences and one of such consequences is that the authority ought not to act to defeat the 'legitimate expectation' without some overriding reason of public policy to justify its doing so. in a case of legitimate expectation' if the authority proposes to defeat a person's 'legitimate expectation' it should afford him an opportunity to make representations in the matter. in this connection reference may be made to the discussions on 'legitimate expectation' at page 151 of volume 1(1) of halsbury's laws of england - fourth edition (re-issue). we may also refer to a decision of the house of lords in council of civil service unions v. minister for the civil service. it has been held in the said decision that an aggrieved person was entitled to judicial review if he could show that a decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he was given reasons for withdrawal and the opportunity to comment on such reasons.16. it may be indicated here that the doctrine of 'legitimate expectation' imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such 'legitimate expectation'. within the conspectus of fair dealing in case of 'legitimate expectation', the reasonable opportunities to make representation by the parties likely to be affected by any change of consistent past policy, come in....32. in union of india v. hindustan development corporation : air1994sc988 , the apex court considered the doctrine of legitimate expectation and at para 28 it was observed thus:28...for legal purposes, the expectation cannot be the same as anticipation. it is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. however earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. a pious hope even leading to a moral obligation cannot amount to a legitimate expectation. the legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. again it is distinguishable from a genuine expectation. such expectation should be justifiably legitimate and protectable. every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.33. in secretary, state of karnataka v. uma devi (supra) the constitution bench of the apex court having referred to the claim of the employees based on the doctrine of legitimate expectation and at para 46 held thus:46. ...the doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do page 4655 until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.34. in ram pravesh singh v. state of bihar : (2007)illj202sc a two-judges bench of the apex court at para 15 held thus:15. what is legitimate expectation? obviously, it is not a legal right. it is an expectation of a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. the term 'established practice' refers to a regular, consistent, predictable and certain conduct, process or activity of the decision-making authority. the expectation should be legitimate, that is, reasonable, logical and valid. any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. not being a right, it is not enforceable as such. it is a concept fashioned by the courts, for judicial review of administrative action. it is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established. in short, a person can be said to have a 'legitimate expectation' of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent past practice of the authority gives room for such expectation in the normal course. as a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above 'fairness in action' but far below 'promissory estoppel'. it may only entitle an expectant: (a) to an opportunity to show cause before the expectation is dashed; or (b) to an explanation as to the cause for denial. in appropriate cases, the courts may grant a direction requiring the authority to follow the promised procedure or established practice. a legitimate expectation, even when made out, does not always entitle the expectant to a relief. public interest, change in policy, conduct of the expectant or any other valid or bona fide reason given by the decision-maker, may be sufficient to negative the 'legitimate expectation'. the doctrine of legitimate expectation based on established practice (as contrasted from legitimate expectation based on a promise), can be invoked only by someone who has dealings or transactions or negotiations with an authority, on which such established practice has a bearing, or by someone who has a recognized legal relationship with the authority.35. in the instant case, we have not been shown any compelling reasons by the government to make a departure from not taking up regular recruitment for all these years. it is not the case that the department is down sized or any of its activities are lessened and cannot go for recruitment or has precarious financial condition. the petitioners who were aged around 30 in the year 1994-95 might have crossed 40 plus at this time. now it is stated that the government proposes to go for regular recruitment of the said posts of excise constables and even if the petitioners are given opportunity as per the directions of the supreme court, though the petitioners herein are not parties in the appeals, in view of the fact that the petitioners herein are similarly situated on par with the respondents in the appeals decided by the supreme court, the concession which the petitioners would be getting is only age barrier. but the said concession would become otiose as the petitioners herein or the respondents in the appeals decided by the supreme court would conform to the physical standards and qualify in the physical efficiency test of one star and after qualifying thereof, compete for national physical efficiency test of three star standard, at this length of time who are almost 40 plus of their age.36. on above analysis of the matter, we direct the respondent-government to consider giving exemption to the petitioners from subjecting themselves to physical efficiency tests of one star and three star in addition to the age relaxation in view of the long lapse of time, in the posts of excise constables now sought to be filled-up, inasmuch as no recruitment has been taken up, the government in all fairness should come forward to do justice to the petitioners and other similarly situated persons who are active and said to be around 200 in number.37. subject to the above directions, the writ petitions are disposed of. no order as to costs.
Judgment:ORDER
Ghulam Mohammed, J.
1. The petitioners in WPs 8573 and 10432 of 2008 are parties to OAs 4927 of 2007 & 6970 of 2004 and the petitioners in other three writ petitions have filed these writ petitions by obtaining leave of the Court. Batch of OAs including the above OAs were disposed of by the AP Administrative Tribunal, Hyderabad, by judgment dated 10-4-2008. The petitioners in all these writ petitions assail the action of the respondents in not filling up the vacancies (Excise constables) reserved for direct recruitment and filling up the said vacancies by the Andhra Pradesh Special Police (APSP) constables on deputation as being arbitrary, illegal and unconstitutional violating Articles 14, 16 and 21 of the Constitution and ultra virus to Rule 3, read with Note 3 of AP Prohibition and Excise Subordinate Service Rules (for short, 'the Special Rules') and to set aside the common judgment dated 10-4-2008 passed in OA No. 6391 of 2004 and batch and consequently direct the official respondents to consider their cases and other similarly placed candidates for appointment as Excise constables before making any fresh recruitment in respect of the said posts. The petitioners also assail GO Ms. No. 1103, Revenue (Excise-I) Department, dated 17-8-2007 declaring the APSP constables who are on deputation to Prohibition & Excise Department as surplus in Police Department and their absorption as Prohibition & Excise constables in the existing vacancies in Prohibition & Excise Department as being illegal and violative of the provisions of the Presidential Order and the deputation of the APSP constables as Prohibition and Excise constables beyond the maximum period of five years is contrary to guidelines issued in GO (P) No. 10, Finance & Planning (FW.FR.II) Department, dated 22-1-1993 and, therefore are liable to be repatriated to their parent department.
2. The facts of the case are: the State Government vide GO Rt. No. 1303, Rev. (Ex.I), Department, dated 31-8-1994 permitted the Commissioner of Prohibition and Excise to take up recruitment for filling up 1751 posts of Prohibition and Excise constables and accordingly a notification was issued for recruitment to the said posts. Pursuant to the notification, physical and written tests were conducted in the year 1994 and interview for those candidates who were successful in physical and written tests was conducted by a selection committee, constituted for that purpose, between 19-10-1994 and 23-10-1994. But on account of announcement of General Elections to the AP Legislative Assembly and as the Election Notification was issued on 1-11-1994, the election code has come into force, the recruitment process was stopped and the results of oral interview was not declared and no select list was published.
3. In view of the decision taken by the Government to introduce total prohibition in the State of Andhra Pradesh, the Government vide Memo. No. 67587/Ex.l/94-3, dated 21-12-1994, cancelled the process of recruitment of 1751 of Excise constables. Some of the aspiring candidates who have come up to the stage of oral interview for the said posts, approached the AP Administrative Tribunal assailing the said cancellation of the selection in OA No. 215 of 1995 and batch. The Tribunal by order dated 16-3-1999 disposed of the said OA No. 215 of 1995 and batch directing the State Government to consider the request of the candidates for appointment in any future selections, if they are otherwise eligible for such posts.
4. Not satisfied with the said direction, as the Tribunal directed only consideration of their cases for any future selections, if they are otherwise eligible for such posts, approached this Court by filing writ petitions being WP No. 12633 of 1999 and batch. A Division Bench of this Court by order dated 23-6-1999 disposed of the said writ petitions with a direction to the State Government that as and when the Government takes a decision to fill up the vacancies, the case of those candidates should be considered for appointment in the existing vacancies having regard to their ranking in their merit list. Aggrieved by the same, the State carried the matter in appeal in civil appeals against the writ petitions filed by the candidates from Kurnool and Karimnagar regions before the Apex Court, being Civil Appeal Nos. 604 and 915 of 2000 and the said civil appeals were disposed of by the Apex Court by order dated 23-4-2003. The Supreme Court directed that as and when any fresh selection takes place to the posts of excise constables, the applicants-respondents therein may apply for regular recruitment, and in that event, age bar will not be put against them, but they shall satisfy other eligibility conditions and requirements, including qualifications.
5. It is relevant to note that in the year 1993, the Government issued GO Ms. No. 927, Revenue Department, dated 21-9-1993, according sanction for creating 3000 posts of APSP Constables to be on the strength of 9 APSP Battalions to depute them to Prohibition and Excise Department for effective implementation of Prohibition in the State, modified in GO Ms. No. 467, Revenue (Ex.III) Department, dated 23-5-1994, restricting the strength to 2151. Accordingly a notification was issued for their recruitment in Rc. No. 224/R&T;/Admn.2/94, dated 6-7-1994 by the State Level Police Recruitment Board. The strength of APSP Constables selected and deputed in Prohibition & Excise Department was 2151. Subsequently it was considered to repatriate the APSP Constables to their parent Department and accordingly the Government issued Memo No. 32167/Ex.(2)/2004-06, dated 8-6-2005 to repatriate all the APSP Constables in a phased manner as they could not be absorbed in the Prohibition & Excise Department in view of the Presidential Order, by putting them to short training programme and utilize their services in APSP i.e. their parent department. It is stated that under this memo, the Commissioner of Prohibition & Excise was requested to repatriate 1/3rd of the longest serving APSP Constables to each district at the end of September, 2005 and the 2nd and 3rd batches in the months of March, 2006 and September, 2006 and recruit Prohibition & Excise constables immediately. However, this Memo dated 8-6-2005 was kept in abeyance by the Government by issuing Memo No. 32167/Ex.(2)/2004, dated 27-7-2005. It appears the Director General & Inspector General of Police expressed an opinion to the effect that the APSP Constables working on deputation basis for a considerable time in Excise Department were not fit for redeployment, suggested for permanent absorption in Excise Department. Thereafter, the Government in GO Rt. No. 894, Revenue (Excise.I) Department, dated 29-4-2006, constituted a Committee to work out the modalities for implementation of the scheme for absorption of APSP Constables in Excise Department within the spirit of the Presidential Order, communal reservations, without affecting the interests of feeder category. However, the said Committee recommended to treat the APSP constables working on deputation in Prohibition and Excise Department as surplus in Police Department. Thereafter, the Government issued GO Ms. No. 1103, Revenue (Excise-I) Department, dated 17-8-2007 declaring 2151 APSP Constables working in Prohibition and Excise Department on deputation as surplus in Police Department and decided to absorb them as Prohibition & Excise constables in the existing vacancies in Prohibition and Excise Department in accordance with the Presidential Order and the relevant rules after obtaining the option from the APSP constables.
6. Counter affidavit is filed by the Deputy Secretary to Government, Revenue (Excise.I) Department, Hyderabad, on behalf of the official respondents, wherein it is stated that the State Government issued notification containing guidelines and procedure for recruitment to 1751 posts of Excise constables and pursuant to the Government orders, the Commissioner of Prohibition and Excise notified the vacancies to the Employment Exchange initiating the process of recruitment. After conducting physical and written test, dates for interview were scheduled between 19-10-1994 and 23-10-1994 and for verification of original certificates between 25-10-1994 and 29-10-1994, but no select list was published by the appointing authority i.e. Prohibition & Excise Superintendents. That thereafter on account of announcement of General Elections to the Legislative Assembly, recruitment process was stopped as election notification was issued on 1-11-1994. It is further stated that in the light of the decision of the Government to introduce total prohibition in the State, the process of recruitment of 1751 Excise Constables was cancelled vide Memo No. 67587/Ex.l/94-3, dated 21-12-1994 and against these orders some of the candidates approached the AP Administrative Tribunal and Tribunal by its common order dated 16-3-1999 directed the State Government to consider the request of the selected excise constables in preference to raw-recruits for any future selections, if they are otherwise eligible for such posts. The matter was further carried to this Court and this Court in a batch of writ petitions directed that if the Government comes to the conclusion that it is necessary to fill up the posts of Excise Constables, then the case of the petitioners therein be considered for appointment as Excise constables in the existing vacancies having regard to the ranking in the merit list. That the Government carried the matter to the Supreme Court and the Supreme Court directed that as and when any fresh selection takes place to the posts of excise constables, the applicants-respondents therein may apply for regular recruitment, and in that event, age bar will not be put against them, but they shall satisfy other eligibility conditions and requirements, including qualifications. That the services of Home Guards and Armed Reserve Police were utilized in the Excise Department as and when required for conducting raids in crime prone areas on deputation. That the Government decided to introduce Prohibition in a phased manner and introduced partial Prohibition w.e.f. 1-10-1993 by banning arrack. Subsequently, the Government took decision to implement total prohibition and therefore the Government issued GO Ms. No. 467, Revenue (Ex.III) Department, dated 23-5-1994 according sanction for 3000 posts of APSP constables to be on the strength of 9 APSP Battalions for deputing them to the Excise Department after imparting necessary training. In pursuance of the orders of the Government, the State Level Police Recruitment Board issued notification for recruitment of 3000 APSP constables. On recruitment, 2500 constables were deputed to Excise Department in the year 1994 and at present total 2192 APSP constables are working on deputation in Prohibition and Excise Department. It is further stated that the post of APSP constable is a State wide post whereas the post of Prohibition and Excise constable is a District cadre post, but most of the APSP constables who are working on deputation with Excise Department are working at their native districts only. That the Government as a policy decision is continuing the APSP constables on the deputation who had been appointed by the Police Department in their own scale of pay. It is further stated that the Government after careful examination has issued orders in GO Ms. No. 1103, Revenue (Ex-I) Department, dated 17-8-2007 to absorb the APSP constables working on deputation as Prohibition and Excise constables after declaring them as surplus in Police Department, duly following the instructions issued in Andhra Pradesh Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975, and other relevant rules which are in vogue scrupulously after obtaining unequivocal/irrevocable option from the APSP constables to the effect that they are willing to accept the scale of pay of Prohibition & Excise constables. That consequent on introduction of the total prohibition, the Government has restructured the Excise Department in GO Ms. No. 558, Revenue (Ex.11) Department, dated 31-10-1995 and 2742 Excise constables posts were abolished and the vacancies that were notified for recruitment in 1994 are no more in existence. That the Government is taking steps to fill up existing vacancies of Prohibition and Excise constables that arose subsequently by way of direct recruitment and as per the order of the Supreme Court referred to above, the case of the petitioners will be considered without reference to their age as on the date of filling up the vacancies. That the Memo dated 21-12-1994 issued by the Government cancelling the recruitment process has not been quashed neither (sic. either) by the AP Administrative Tribunal nor (sic. or) by this Court or by the Supreme Court and in this view of the matter the writ petitions are liable to be dismissed.
7. Some of the APSP constables who are impleaded as party respondents in these cases filed counter affidavit to the effect that the petitioners have no locus standi to challenge their absorption in the Excise Department. It is stated that the Government issued orders vide GO Ms. No. 467, dated 23-5-1994 for recruitment of 3000 posts of APSP constables on the strength of 9 APSP Battalions and to depute them to work in the Excise Department and after imparting necessary training, 2500 constables were deputed to Excise Department in the year 1994 and at present 2192 APSP constables are working on deputation in Prohibition and Excise Department. That the post of APSP constable is outside purview of Six Point Formula, whereas the post of Prohibition and Excise constable is district cadre post, but most of the APSP constables working on deputation in Excise Department are working at their native districts. It is further stated the APSP constables who have put in more than three years of service shall be repatriated to their parent department, but the Director General and Inspector General of Police stated that the APSP constables who are working on deputation in Excise Department from 1994 i.e. nearly 14 years, are not fit for re-deployment in the APSP and suggested for their permanent absorption in the Excise Department. That pursuant thereto, the Government after careful consideration of the matter, constituted a Committee to work out the modalities for implementation of the scheme for absorption of APSP constables in Excise Department within the spirit of Presidential Order, Communal reservations, without affecting the interests of feeder category and promotional avenues of the departmental Excise constables. That the said Committee after examining the issue recommended to treat the APSP constables working on deputation as surplus in Police Department. That the Government after examination of the entire issue declared the 2151 APSP constables who are working on deputation as surplus and directed that they be absorbed as Prohibition and Excise constables duly following Presidential Order and the relevant rules in vogue after obtaining unequivocal and irrevocable option from the APSP constables to the effect that they are willing to accept the scale or pay of Prohibition and Excise constables. That absorption of the APSP constables in Excise Department is neither infringement of any fundamental right nor of a statutory rule nor any civil right of the petitioners. It is also stated that GO Ms. No. 1103, Revenue (Excise-1) Department, dated 17-8-2007 cannot be said to be illegal or arbitrary as the posts held by the party respondents are much prior to the 1994 notification and the policy decision of the Government to absorb the APSP constables is within the power of the Government and it cannot be assailed as infringing a non-existing right of the petitioners.
8. Heard Sri PV Krishnaiah, the learned Counsel for the petitioners, Sri B. Adinaranaya Rao, the learned Counsel representing Sri V. Brahmaiah Chowdary, learned Counsel for the party respondents and the learned Government Pleader for Services-II.
9. Sri PV Krishnaiah, learned Counsel for the petitioners strenuously contended that GO Ms. No. 1103, Revenue (Excise-I) Department, dated 17-8-2007 declaring the APSP constables on deputation to Prohibition and Excise Department as surplus and directing absorption in the Excise Department is bad in law and violative of Presidential Order and Rule 3, read with Note 3 of the Special Rules. Learned Counsel further contended that the process of recruitment of 1751 Excise constables cancelled vide Memo No. 67587/Ex.l/94-3, dated 21-12-1994 by the Government was not a bonafide action and it was done in an arbitrary and biased manner to accommodate the APSP constables. It is contended that the Memo dated 21-12-1994 does not disclose any reasons and such arbitrary cancellation not based on valid reason without bonafide interest is subject to judicial scrutiny. It is further contended that the Government because of the introduction of prohibition, at the relevant time, has not reduced the cadre strength of the posts nor abolished the posts and the posts notified being substantive posts ought not to have been cancelled without assigning any reasons. It is also contended that recruitment to the posts of Excise constables must be resorted to either by direct recruitment or recruitment by transfer and the Government cannot adopt any other mode and inasmuch as the petitioners are selected and only appointment orders could not be issued, the Government in all fairness should come forward to do justice to them and appoint them in the existing vacancies. Learned Counsel stated that inasmuch as the petitioners herein are not parties to the appeals filed by the Government before the Supreme Court, the directions given by the Supreme Court to give age relaxation to the party respondents therein, as and when fresh selection takes place to the posts of Excise constables, must be confined to the parties therein and the said directions cannot come in the way of the petitioners agitating for their rights. It is contended that abolition of posts can only be done in case where the Department is down seized or closed down and such is not the situation in the instant case. Learned Counsel lastly contended that deputation of the APSP constables to the Excise Department beyond the maximum period of five years is impermissible in view of GO (P) No. 10, Finance & Planning (FW.FR.II) Department, dated 22-1-1993 and after completion of five years on deputation, there is no power at all to the Government to extend the deputation and all these aspects of the matter are not properly appreciated by the Tribunal and, therefore, the impugned judgment is liable to be set aside and the writ petitions deserve to be allowed.
10. In support of his contentions, learned Counsel relied on the decisions in Jitendra Kumar v. State of Haryana : (2008)2SCC161 , Subha P. Nair v. State of Kerala : (2008)7SCC210 , K.V. Subba Rao v. Government of Andhra Pradesh : [1988]2SCR1118 Secretary, State of Karnataka v. Uma Devi : (2006)IILLJ722SC , Official Liquidator v. Dayanand : (2009)IIILLJ305SC , All India SC/ST Employees Associaton v. Arthur Jeen 2001 (3) Supreme 427 : 2001 (4) ALT 6.2 (DNSC) and Neelima Shangla v. State of Haryana : [1986]3SCR785 .
11. Sri B. Adinarayana Rao, learned Counsel appearing for the party respondents submitted that the petitioners who are not at all employees muchless selectee candidates have no locus standi to question the absorption of the APSP constables under GO Ms. No. 1103, Revenue (Excise.I) Department, dated 17-8-2007. It is also submitted that the petitioners are under an illusion that their selection is finalized, but the fact situation remains that the select list was not published by the appointing authority and, therefore, they are not aggrieved parties. It is also contended that absorption of the APSP constables in Excise Department is neither infringement of any fundamental right nor of a statutory rule nor any civil right of the petitioners. It is stated that GO Ms. No. 1103, Revenue (Excise-1) Department, dated 17-8-2007 cannot be said to be illegal or arbitrary as the posts held by the party respondents are much prior to the 1994 notification and the policy decision of the Government to absorb the APSP constables is within the power of the Government and it cannot be assailed as infringing a non-existing right of the petitioners.
12. Learned Government Pleader for Services-II also contended that the petitioners who are neither employees nor selectee candidates cannot question the deputation of the APSP constables and they have no locus standi to question the absorption of the APSP constables. It is also contended that there is no pleading to the effect that the petitioners have no knowledge of the Apex Court's order passed in the appeals filed by the Government and when once there is no pleading taken by the petitioners to that effect taken before the Tribunal, the decision of the Apex Court given in the appeals filed by the Government against the writ petitions filed by the candidates from the Kurnool and Karimnagar region is binding on the petitioners as the subject matter is one and the same in all these matters. It is also submitted that the Government after careful examination of the matter and also in the light of the view expressed by the Director General and Inspector General of Police that APSP constables on deputation in Excise Department from 1994 i.e. nearly 14 years, not fit for re-deployment in the APSP, declared the 2151 APSP constables as surplus and directed them to be absorbed as Prohibition and Excise constables duly following Presidential Order and the relevant rules in vogue after obtaining unequivocal and irrevocable option that they are willing to accept the scale of pay of Prohibition and Excise constables. In support of his contention Learned Government Pleader relied on the decision of the Apex Court in PU Joshi v. Accountant General, Ahmedabad : [2002]SUPP5SCR573 .
13. Mainly two core issues are involved in these writ petitions, firstly whether the petitioners who are neither employees nor selectee candidates have locus standi to question the absorption of APSP constables in the Excise Department consequent upon declaring them as surplus in the parent department i.e. Police Department; and secondly whether the process of recruitment of 1751 Excise constables cancelled by the Government vide Memo No. 67587/Ex.l/94-3, dated 21-12-1994, was a bona-fide action or was done in a biased manner to accommodate the APSP constables, as alleged by the petitioners' counsel.
14. The State Government vide GO Rt. No. 1303, Rev. (Ex.l), Department, dated 31-8-1994 permitted the Commissioner of Prohibition and Excise to take up recruitment for filling up of 1751 posts of Prohibition and Excise constables and accordingly a notification was issued for recruitment to the said posts. The Government also constituted District Level Selection Committee with the concerned District Collectors as Chairman, Dy. Commissioner of Excise of the Division and Superintendent of Police/Addl. Superintendent of Police as Members and Excise Superintendent as Convenor, Pursuant to the notification, physical and written tests were conducted in the year 1994 and interview for those candidates who were successful in physical and written tests was conducted by a selection committee, constituted for that purpose, between 19-10-1994 and 23-10-1994. But on account of announcement of General Elections to the AP Legislative Assembly and the Election Notification was issued on 1-11-1994, the election code has come into force, the recruitment process was stopped and the results of oral interview was not declared and no select list was published and in view of the decision taken by the Government to introduce total prohibition in the State of Andhra Pradesh, the Government vide Memo. No. 67587/Ex.l/94-3, dated 21-12-1994, cancelled the process of recruitment of 1715 of Excise constables. The Memo dated 21-12-1994 reads thus:
GOVERNMENT OF ANDHRA PRADESH REVENUE DEPARTMENTMemorandum No. 67587-Excise-1/94-3Dated 21-12-1994Sub: New Excise Policy-Recruitment of Excise Constables-Orders issued in GO Ms. No. 927, Revenue, Dated 21-9-1993 and GO Rt. No. 1303, Rev., dated 31-8-1994-Certain revised instructions issued.
Ref: 1. GO Ms. No. 927, Revenue, dated 21-9-1993
2. GO Rt. No. 1303, Revenue, dated 31-8-1994
3. From the Commissioner of Excise DO Ietter Cr. No. 28888/93/EX/H3, dated 13-12-1994.
The attention of the Commissioner of Excise is invited to the references cited and he is informed that after careful examination of the matter and in the context of immediate introduction of total prohibition, the orders issued in the GO first cited are kept in abeyance. Consequently, the Commissioner of Excise is requested to countermand and cancel the process initiated for the recruitment of 1751 posts of Excise Constables referred to in the GO second.
The action taken in the matter may be reported to Government urgently. TR PrasadPRINCIPAL SECRETARY TOGOVERNMENTToThe Commissioner of Excise,Hyderabad//Forwarded : By order//Sd/-SECTION OFFICER
15. Pursuant to the above Memo dated 21-12-1994 issued by the Government, the Commissioner of Excise by proceedings Cr. No. 28888/93/Ex.H3, dated 22-12-1994 directed all the Collectors and Excise Superintendents to countermand and cancel the process initiated for the recruitment of Excise constables immediately. The reason that was assigned to countermand and cancel the process of recruitment of 1751 posts of Excise constables was in the context of immediate introduction of total prohibition in the State of Andhra Pradesh. It is a matter of fact that the Government lifted prohibition in the year 1997 and there was a change in the prohibition policy. It is true that the petitioners participated in physical and written tests for the said posts conducted by the selection committee, and on being successful in those tests they were called for interviews but, admittedly no select list was published and the process of recruitment is said to be not completed. The contention of the learned Counsel for the petitioners that the Government Memo dated 21-12-1994 to countermand and cancel the process of recruitment of 1751 posts of Excise constables was done to accommodate the APSP constables cannot be appreciated because merely vacancies are notified and the selection process has come to a stage, the State is not obliged to fill all the vacancies notified, unless there is some provision to the contrary in the applicable rules. The decision to fill up or not to fill up a post, is a policy decision of the Government and unless it is infected with the vice of arbitrariness, scope for interference in judicial review is narrow and limited. But the other aspect of the matter that is to be observed is the obligation of the Government to act fairly. It is relevant to notice some of the precedents operating in the field.
16. In Shankarsan Dash v. Union of India : (1992)IILLJ18SC the Apex Court at para 7 held thus:
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.
17. In Asha Kaul v. State of J and K : (1993)2SCC573 the Apex Court at para 8 held thus:
8 It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment (State of Haryana v. Subhash Chander Marwaha; Mani Subrat Jain v. State of Haryana, State of Kerala v. A. Lakshmikutty) but that is only one aspect of the matter. The other aspect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select a particular number of candidates for a particular category, in pursuance of which the Commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the government the government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any government can adopt such a stand with any justification.
18. In RS Mittal v. Union of India : 1995(2)SCALE433 the Apex Court at para 10 held thus:
10. ...It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The central government's approach in this case was wholly unjustified.
19. In Subha P. Nair's case (supra), the Apex Court at para 7 held thus:
7. A decision on the part of an employer whether to fill up the existing vacancies or not is within its domain. On this limited ground in absence of discrimination or arbitrariness, a writ court ordinarily would not interfere in such matters. This has been so held by this Court in Deepa Keyes v. Kerala State Electricity Board (2007) 6 SCC 194 observing that the rank list having expired and the validity having not been extended, no relief could be granted to the appellants therein.
20. In Paras 41 & 70 of the decision by three-Judge Bench of the Apex Court in Official Liquidator's case (supra) reads thus:
41. The creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source and mode of recruitment and qualifications and criteria of selection etc. are matters which fall within the exclusive domain of the employer. Although the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode of recruitment and lay down the qualification etc. is not immune from judicial review, the Court will always be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by malafides.
70. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. it must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.
21. In the instant case, the Memo dated 21-12-1994 by which the process of recruitment of 1751 Excise constables is cancelled was subject matter in OA No. 215 of 1995 and batch before the AP Administrative Tribunal. The Tribunal disposed of OA No. 215 of 1995 and batch by order dated 16-3-1999, the relevant portion of the order, reads thus:
Admittedly, the State Government have not cancelled the posts of Excise Constables created in the Department after the change in the prohibition policy. The need for strengthening the Department cannot, therefore, be said to be not available. If the State decides to strengthen the Excise Department by posting Constables either by recruitment or by deputation, we are of the considered view that the Excise constables who underwent selection process by a properly constituted selection committee against which no malafides are attributed by any one should be given preference over the fresh candidates. We, therefore, direct the State Government to consider the request of the selected Excise Constables in preference to raw-recruits for any future selections, if they are otherwise eligible for such posts. The OAs are disposed of accordingly. All the CAs stand closed and all the MAs. stand disposed of in view of the disposal of the main OAs. No costs.
22. Against the above order of the Tribunal, Writ Petitions were filed before this Court in WP No. 12633 of 1999 and batch by the applicants in the batch of OAs. Those Writ Petitions were disposed of this Court by order dated 23-6-1999 with a direction that as and when the Government decides to fill up the vacancies, the case of the petitioners therein should be considered for appointment in the existing vacancies having regard to their ranking in their merit list. Aggrieved by the same, the State carried the matter in appeal in civil appeals against the writ petitions filed by the candidates from Kurnool and Karimnagar regions before the Apex Court, being Civil Appeal Nos. 604 and 915 of 2000. The said civil appeals were disposed of by the Apex Court by order dated 23-4-2003. The relevant portion of the order is thus:
4. In the counter affidavit filed on behalf of the respondents in civil appeal No. 915 of 2000, in paragraph 16 it is stated that the process of selection was cancelled at the last stage, i.e. before publishing the list of selected candidates on the sole ground that the State government wanted to introduce prohibition and obviously the government felt that there was no need of Excise constables during imposition of prohibition in the State. There is serious dispute as to the completion of selection process. According to the appellants, the selection process was not complete. No record has been placed before us to show that the selection process was complete, but, it is not disputed that the select list was not published. In paragraph 16 of the counter affidavit, referred above, the respondents themselves had admitted that the selection process was cancelled at the last stage. In the absence of publication of select list, we are inclined to think that the selection process was not complete. Be that as it may, even if the selection process was complete and assuming that only select list was remained to be published that does not advance the case of the respondents for the simple reason that even the candidates who are selected and whose names find place in the select list, do not get vested right to claim appointment based on the select list. It was open to the State government to take a policy decision either to have prohibition or not to have prohibition in the State. Certainly, the government had right to take a policy decision. If pursuant to a policy decision taken to impose prohibition in the State there was no requirement for the recruitment of constables in the Excise Department, nobody can insist that they must appoint candidates as Excise constables. It is not the case of the respondents that there was any malafide on the part of the appellants in refusing the appointment to the respondents after the selection process was complete. The only claim was that the action of the appellants, in not appointing the respondents as Excise Constables, was arbitrary. In the light of the facts that we have stated above, when it was open to the government to take a policy decision, we fail to understand as to how the respondents can dub the action of the respondents (sic appellants) as arbitrary, particularly, when they did not have any right as such to claim appointments. In the absence of selection and publication of select list, mere concession or submission made by the learned government pleader on behalf of the appellant-State cannot improve the case of the respondents. Similarly, such a submission cannot confer right on the respondents, which they otherwise did not have.
(emphasis supplied)
5. Under these circumstances, we find it difficult to sustain the impugned judgment and order. However, having regard to the peculiar facts and circumstances of the case and that the respondents had the benefit of the order of the High Court, we think it is just and appropriate that as and when any fresh selection takes place to the post of Excise Constables, the respondents may apply for regular recruitment. In that event age bar will not be put against them but, they shall satisfy other eligibility conditions and requirements, including qualifications.
6. Under the circumstances, the impugned orders are set aside, subject to what is stated above. The appeals are allowed accordingly. No costs.
23. The petitioners herein are not parties to the OAs filed on the earlier occasion by the similarly situated candidates like that of the petitioners but, the fact remains that the validity or otherwise of Government Memo dated 21-12-1994 by which the process of recruitment of 1751 Excise constables is cancelled was considered by the Tribunal, in writ petitions by this Court and in appeals by the Supreme Court and the legality of Government Memo dated 21-12-1994 was upheld and, therefore, it is not open for the petitioners herein to once again call upon this Court to consider the legality or otherwise of the said Memo dated 21-12-1994. The contention of the petitioners is that inasmuch as the petitioners are not parties to the appeals filed by the Government before the Supreme Court, the directions work out only against the parties therein and cannot come in the way of the petitioners agitating for their rights and for this proposition, he relied on the constitutional Bench decision of the Supreme Court in State of Punjab v. Joginder Singh : AIR1963SC913 reads thus:
9. This will be a convenient stage where we might summarise briefly the provisions of the impugned rule and their impact on the right to promotion of the respondent and the other 'junior teachers' of the 'provincialised' service to which he belongs. Before however, doing so it is necessary to mention a preliminary objection that was taken to the hearing of the appeal. Along with the respondent Jogindra Singh there were three others who had filed similar petitions and sought the same relief. Writ Petitions 161 and 162 of 1961 were by 'junior teachers' like the respondent, while Amrik Singh petitioner in the remaining petition (Petition 163 of 1961) was a Head Master among the 'provincialised' teachers. All the four petitions were dealt with together and were disposed of by a common judgment so that relief accorded to Jogindra Singh the respondent before us in Writ Application 1559 of 1960 was also granted to the other three petitioners. The State however has preferred no appeal against the orders in the other three petitions, and Mr. Agarwal, learned Counsel for the respondent, raises the contention that as the orders in the other three petitions have become final, any order passed in this appeal at variance with the relief granted in the other three petitions would create inconsistent decrees in respect of the same matter and so we should dismiss the present appeal as incompetent. We, however, consider that this would not be the legal effect of any order passed by the Court in this appeal and that there is no merit in this objection as a bar to the hearing of the appeal. In our opinion, the true position arising, if the present appeal by the State Government should succeed, would be that the finality of the orders passed in the other three writ petitions by the Punjab High Court would not be disturbed and that those three successful petitioners would be entitled to retain the advantages which they had secured by the decision in their favour not being challenged by an appeal being filed. That however would not help the present respondent who would be bound by our judgment in this appeal and besides, so far as the general law is concerned as applicable to everyone other than the three writ petitioners (who would be entitled to the benefit of decision in their favour having attained finality), the law will be as laid down by this Court. We tnerefore overrule the preliminary objection.
24. There is no dispute and there cannot be any dispute with the proposition of law laid by the Supreme Court in the said case (supra), but the facts on hand are distinguishable. In this case, the Government Memo dated 21-12-1994 to countermand and cancel the process of recruitment of 1751 posts of Excise constables was sustained and the only concession given to the respondents therein was as and when any tresh selection takes place to the post of Excise Constables, the respondents may apply for regular recruitment and in that event age bar will not be put against them but, they shall satisfy other eligibility conditions and requirements, including qualifications, the petitioners who are also part of the same selection and their selection cancelled by the same Government Memo dated 21-12-1994 cannot assail only by reason that they were not parties to the earlier round of litigation. That apart, the Government, at the relevant time, which came into power with the avowed vow of introducing total prohibition took a decision to introduce total prohibition in the State and as consequence thereof the respondents countermanded the selection process of Excise constables as according to them there was no need for additional manpower when the prohibition is introduced in the State. Further, as contended by the learned Government Pleader for Services-II there is no pleading to the effect that the petitioners have no knowledge of the Apex Court's order passed in the appeals filed by the Government and when once there is no pleading taken by the petitioners to that effect before the Tribunal, the decision of the Apex Court given in the appeals filed by the Government against the writ petitions filed by the candidates from the Kurnool and Karimnagar region is binding on the petitioners as the subject matter is same. The Apex Court decision in All India SC/ST Employees Association v. Arthur Jeen (supra), relied on by the learned Counsel for the petitioners, the facts are different. In that case the process of selection was long drawn and the candidates were made to appear for interview twice and the candidates and their families have been waiting for long time from 1995, with great hope of getting jobs and enormous money and man hours have been spent in completing the process of selection in preparing panel of selected candidates and under those circumstances it was held there was no justification for the Tribunal to quash the entire panel of selected candidates. In the instant case the petitioners are not selected candidates and there was no select list published as the process of selection is said to be not complete.
25. The next contention of learned Counsel for the petitioners is that GO Ms. No. 1103, Revenue (Excise-I) Department, dated 17-8-2007 declaring the APSP constables on deputation to Prohibition and Excise Department as surplus and directing absorption in the Excise Department is bad in law and violative of Presidential Order and Rule 3, read with Note 3 of the Special Rules.
26. The Government under GO Ms. No. 927, Revenue Department, dated 21-9-1993, according sanction for creating 3000 posts of APSP Constables to be on the strength of 9 APSP Battalions to depute them to Prohibition and Excise Department for effective implementation of Prohibition in the State and the strength of APSP Constables selected and deputed in Prohibition & Excise Department was 2151. Subsequently it was considered to repatriate the APSP Constables to their parent Department and accordingly the Government issued Memo No. 32167/Ex.(2)/2004-06, dated 8-6-2005 to repatriate all the APSP Constables in a phased manner as they could not be absorbed in the Prohibition & Excise Department in view of the Presidential Order, by putting them to short training programme and utilize their services in APSP i.e. their parent department. However, this Memo dated 8-6-2005 was kept in abeyance by the Government by issuing Memo No. 32167/Ex.(2)/2004, dated 27-7-2005 apparently in view of the opinion expressed by the Director General & Inspector General of Police that the APSP Constables working on deputation basis for a considerable time in Excise Department were not fit for redeployment. Thereafter, the Government in GO Rt. No. 894, Revenue (Excise.I) Department, dated 29-4-2006, constituted a Committee to work out the modalities for implementation of the scheme for absorption of APSP Constables in Excise Department within the spirit of the Presidential Order, communal reservations, without affecting the interests of feeder category. However, the said Committee recommended to treat the APSP constables working on deputation in Prohibition and Excise Department as surplus in Police Department and in consequence of the recommendations of the said Committee the Government issued GO Ms. No. 1103, Revenue (Excise-I) Department, dated 17-8-2007 declaring 2151 APSP Constables working in Prohibition and Excise Department on deputation as surplus in Police Department and decided to absorb them as Prohibition & Excise constables in the existing vacancies in Prohibition and Excise Department in accordance with the Presidential Order and the relevant rules after obtaining the option from the APSP constables. But the question is how the petitioners are aggrieved by the absorption of the APSP constables when they are not even selectee candidates muchless departmental Excise constables. The law on this field stipulates that even a person on the select panel has no vested right to be appointed to the post for which he has been selected, and has a right to be considered for appointment. It is apropos, the extract the relevant observation made by the Supreme Court while disposing of the appeals filed by the Government, which is thus:
Be that as it may, even if the selection process was complete and assuming that only select list was remained to be published that does not advance the case of the respondents for the simple reason that even the candidates who are selected and whose names find place in the select list, do not get vested right to claim appointment based on the select list. It was open to the State government to take a policy decision either to have prohibition or not to have prohibition in the State. Certainly, the government had right to take a policy decision. If pursuant to a policy decision taken to impose prohibition in the State there was no requirement for the recruitment of constables in the Excise Department, nobody can insist that they must appoint candidates as Excise constables.
27. In this view of the matter it is to be held that the petitioners are not aggrieved parties and they have (sic. have no) locus standi to question GO Ms. No. 1103, Revenue (Excise. I) Department, dated 17-8-2007.
28. Under GO (P) No. 10, Finance & Planning (FW.F.R.II) Department, dated 22-1-1993 the maximum period of deputation is five years. The period of deputation shall be subject to a maximum of five years of which the initial period of deputation upto 3 years shall be sanctioned by the Head of the Department and extension, beyond the initial period of 3 years, that is for a further period upto 2 years shall be considered where public interest is involved and under no circumstances extensions beyond the specified periods will be considered by the Government. The APSP constables have been working on deputation from 1994 i.e. for the last 14 years and admittedly their deputation was not extended beyond the specified period of five years. But this restriction imposed in the said GO is a guideline and is in the nature of administrative instruction. The Government has a prerogative right to issue a GO extending the period of deputation beyond five years, in appropriate cases and where public interest is involved and there is no statutory rule prohibiting the same. It is not that any (sic. no) efforts are made by the Government to repatriate the APSP constables to their parent department. in fact, the Government issued Memo No. 32167/Ex.(2)/2004-06, dated 8-6-2005 to repatriate all the APSP Constables in a phased manner as they could not be absorbed in the Prohibition & Excise Department in view of the Presidential Order, by putting them to short training programme, but this Memo dated 8-6-2005 was kept in abeyance by the Government by issuing Memo No. 32167/Ex.(2)/2004, dated 27-7-2005 purportedly on the opinion expressed by the Director General & Inspector General of Police that the APSP Constables working on deputation for a considerable time in Excise Department were not fit for redeployment. Thereafter, the Government in GO Rt. No. 894, Revenue (Excise.I) Department, dated 29-4-2006, constituted a Committee to work out the modalities for implementation of the scheme for absorption of APSP Constables in Excise Department within the spirit of the Presidential Order, communal reservations, without affecting the interests of feeder category. However, the said Committee recommended to treat the APSP constables working on deputation in Prohibition and Excise Department as surplus in Police Department. Thereafter, the Government issued GO Ms. No. 1103, Revenue (Excise-I) Department, dated 17-8-2007 declaring 2151 APSP Constables working in Prohibition and Excise Department on deputation as surplus in Police Department and decided to absorb them as Prohibition & Excise constables in the existing vacancies in Prohibition and Excise Department in accordance with the Presidential Order and the relevant rules after obtaining the option from the APSP constables. The APSP constables who are sought to be absorbed have no grievance for their absorption and in fact in the counter affidavit filed by them it is stated that most of them are working in their native districts and they are willing to accept the scale of pay of Excise constables. In the said GO Ms. No. 1103, dated 17-8-2007, provision has been made protecting the interest of the departmental Prohibition and Excise constables and it was stipulated that on absorption of the APSP constables into Prohibition and Excise Department their seniority shall be fixed commencing from the last candidate in the existing seniority list of the departmental Prohibition & Excise constables. Further the Government framed Ad-hoc rules under GO Ms. No. 267, General Administration (Ser.A) Department, dated 17-7-1998 and by virtue of the said Ad-hoc rules, irrespective of the provisions in the AP State and Subordinate Service Rules or Special Rules, the persons identified/declared as surplus in any Government service, can be absorbed in other Government departments, before resorting to direct recruitment in the vacancies, which are equivalent posts.
29. It was also the contention of the learned Counsel for the petitioners that the Government ought not to have abolished the posts notified in the year 1994, the posts being substantive posts, this contention cannot be countenanced as no mala-fides nor the petitioners could show that the exercise undertaken to abolish the posts, in view of the change in the prohibition policy by the Government is vitiated by arbitrariness or non-application of mind or the same is influenced by extraneous reasons. Even otherwise, the questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled are all matters of State concern. The decision of the Apex Court in PU Joshi v. Accountant General, Ahmedabad (supra), para 10 is thus:
10. ...Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.
30. The Supreme Court in the civil appeals filed by the Government against the writ petitions filed by the candidates from Kurnool and Karimnagar regions directed that as and when any fresh selection takes place to the post of Excise constables, the respondents may apply for regular recruitment and in that event age bar will not be put against them, but they shall satisfy other eligibility conditions and requirements including qualifications. It is stated that there is no recruitment of Excise constables from 1995 onwards i.e. nearly 14 years and petitioners, being similarly placed candidates, had any (sic. no) occasion to compete for the said posts even as per the directions of the Supreme Court in civil appeals filed by the Government. In Secretary, State of Karnataka v. Uma Devi the Apex Court (supra) at paras 13, 26, 33 held thus:.The State should not be allowed to depart from the normal rule and indulge in temporary employment in permanent posts. Regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and appointments to non-available posts should not be taken note of for regularization. The Supreme Court is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. It is not the role of the Courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. The approving of such acts also results in depriving many of their opportunity to compete for public employment. It would also mean that appointments made or engagements given outside the constitutional scheme. The approving of such acts also results in depriving many of their opportunity to compete for public employment. It would also mean that appointments made otherwise than by a regular process of selection would become the order of the day, completely jettisoning the constitutional scheme of appointment.
31. The right of a citizen to live under Article 21 of the Constitution casts an obligation on the State. The State is obligated to make regular recruitments and appointments and cannot transgress the rules of regular recruitment. By not resorting to regular recruitment, the legitimate expectation of the petitioners is shattered. It may be stated here that the doctrine of 'legitimate expectation' imposes in essence a duty on Government to act fairly by taking into consideration all the relevant facts relating to such 'legitimate expectation.' The State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. The decision governing the field may be noted. In Navjyothi Co-op Housing Society v. Union of India : AIR1993SC155 the Apex Court at paras 15 & 16 held thus:
15. ...In the aforesaid facts, the Group Housing Societies were entitled to 'legitimate expectation' of following consistent past practice in the matter of allotment, even though they may not have any legal right in private law to receive such treatment. The existence of 'legitimate expectation' may have a number of different consequences and one of such consequences is that the authority ought not to act to defeat the 'legitimate expectation' without some overriding reason of public policy to justify its doing so. In a case of legitimate expectation' if the authority proposes to defeat a person's 'legitimate expectation' it should afford him an opportunity to make representations in the matter. In this connection reference may be made to the discussions on 'legitimate expectation' at page 151 of Volume 1(1) of Halsbury's Laws of England - Fourth Edition (re-issue). We may also refer to a decision of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service. It has been held in the said decision that an aggrieved person was entitled to judicial review if he could show that a decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he was given reasons for withdrawal and the opportunity to comment on such reasons.
16. It may be indicated here that the doctrine of 'legitimate expectation' imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such 'legitimate expectation'. Within the conspectus of fair dealing in case of 'legitimate expectation', the reasonable opportunities to make representation by the parties likely to be affected by any change of consistent past policy, come in....
32. In Union of India v. Hindustan Development Corporation : AIR1994SC988 , the Apex Court considered the doctrine of legitimate expectation and at para 28 it was observed thus:
28...For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.
33. In Secretary, State of Karnataka v. Uma Devi (supra) the Constitution Bench of the Apex Court having referred to the claim of the employees based on the doctrine of legitimate expectation and at para 46 held thus:
46. ...The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do Page 4655 until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.
34. In Ram Pravesh Singh v. State of Bihar : (2007)ILLJ202SC a two-Judges Bench of the Apex Court at para 15 held thus:
15. What is legitimate expectation? Obviously, it is not a legal right. It is an expectation of a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. The term 'established practice' refers to a regular, consistent, predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as such. It is a concept fashioned by the courts, for judicial review of administrative action. It is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established. In short, a person can be said to have a 'legitimate expectation' of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent past practice of the authority gives room for such expectation in the normal course. As a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above 'fairness in action' but far below 'promissory estoppel'. It may only entitle an expectant: (a) to an opportunity to show cause before the expectation is dashed; or (b) to an explanation as to the cause for denial. In appropriate cases, the courts may grant a direction requiring the authority to follow the promised procedure or established practice. A legitimate expectation, even when made out, does not always entitle the expectant to a relief. Public interest, change in policy, conduct of the expectant or any other valid or bona fide reason given by the decision-maker, may be sufficient to negative the 'legitimate expectation'. The doctrine of legitimate expectation based on established practice (as contrasted from legitimate expectation based on a promise), can be invoked only by someone who has dealings or transactions or negotiations with an authority, on which such established practice has a bearing, or by someone who has a recognized legal relationship with the authority.
35. In the instant case, we have not been shown any compelling reasons by the Government to make a departure from not taking up regular recruitment for all these years. It is not the case that the department is down sized or any of its activities are lessened and cannot go for recruitment or has precarious financial condition. The petitioners who were aged around 30 in the year 1994-95 might have crossed 40 plus at this time. Now it is stated that the Government proposes to go for regular recruitment of the said posts of Excise constables and even if the petitioners are given opportunity as per the directions of the Supreme Court, though the petitioners herein are not parties in the appeals, in view of the fact that the petitioners herein are similarly situated on par with the respondents in the appeals decided by the Supreme Court, the concession which the petitioners would be getting is only age barrier. But the said concession would become otiose as the petitioners herein or the respondents in the appeals decided by the Supreme Court would conform to the physical standards and qualify in the physical efficiency test of One Star and after qualifying thereof, compete for National Physical Efficiency Test of Three Star standard, at this length of time who are almost 40 plus of their age.
36. On above analysis of the matter, we direct the respondent-Government to consider giving exemption to the petitioners from subjecting themselves to physical efficiency tests of One Star and Three Star in addition to the age relaxation in view of the long lapse of time, in the posts of Excise constables now sought to be filled-up, inasmuch as no recruitment has been taken up, the Government in all fairness should come forward to do justice to the petitioners and other similarly situated persons who are active and said to be around 200 in number.
37. Subject to the above directions, the writ petitions are disposed of. No order as to costs.