High Court of Punjab and HaryanaCWP/227/2014dismissed

Berjogar Linemen Union (Pb) Pspcl And ORS v. Pb State Power Corp Ltd. (Pspcl) And ORS

2015-07-02Mr. Justice Jitendra Chauhan23 pages

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(' & ' <It is, thus, in the fitness of things that respondent No. 2 must operate within certain frame work while having the leverage as an independent public sector corporation to look to its affairs. In the matter of deployment of personnel, it should obtain guidelines from the Commission qua this aspect as that forms the basis of the trariff fixation. In our view this is sufficient to protect the interest of the public at large. We make it clear that the issue of Linemen was taken up only as an illustrative one and, thus, these directions are to be applied across the board for deployment of personnel. This would save money for the State of Punjab as it is professing financial crunch in respect of various aspects pending before the Court.

In compliance with the order passed by this Court on 19.7.2011, the report of the Commission dated 19.9.2011 is available, which would meet the position till that date. For convenience of reference, we reproduce the conclusion as under:

5 "Conclusion:

Keeping all the above facts in view, while the commission is for right sizing the overall strength of employees, it is not against recruiting the required manpower of Linemen/SSAs to run the existing and ever expanding power networks of PSPCL and PSTCL in line with recommendations of PwC Reports on PSPCL and PSTCL. Being a Govt. undertaking, it may not be possible for PSPCL/PSTCL to reduce its manpower through retrenchment and the practical solution would be to reduce it through retirement over a period of 2011

15. Recruitments of Linemen & SSAs in the organization to replace such retiring employees should be limited to only the essential requirement. The Commission thus concluded that PSPCL/PSTCL should decide to recruit Linemen/SSAs against CRA No.267/11 in line with PwC Reports."

Insofar as the view beyond September, 2011 is concerned, guidelines/instructions can be obtained from the Commission.

The writ petitions accordingly stand disposed of." "+)

' <The Commission thus concluded that PSPCL/PSTCL should decide to recruit Linemen/SSAs against CRA No.267/11 in line with PwC Reports."

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& (" &)"* Designation PSEB Sanctioned PSEB Existing PSPCL PSCL AO SSA AE Company Secretary JE JE Civil Law Officer Gr.II AMHR AMIT " +

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& ' 9 It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons.

And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatinder Kumar v. State of Punjab."

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14 5( . In State of Haryana v. Subash Chander Marwaha this Court held: (SCC p. 226, paras 1011) "10. E The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. E

11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Rai Shivendra Bahadur (Dr.) v. Nalanda College that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived." In Pitta Naveen Kumar v. Raja Narasaiah Zangiti this Court held: (SCC p. 273, para 32) "32. E A candidate does not have any legal right to be appointed.

He in terms of Article 16 of the Constitution of India has only a right to be considered therefor.

15 otherwise."

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6&3,;;( In State of Bihar v. Madan Mohan Singh this Court held that the advertisement and the whole selection process were meant only for 32 vacancies. The process came to an end as soon as these vacancies were filled up. 1#

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. In State of Bihar v. Madan Mohan Singh, this Court has in terms held that if the advertisement and the consequent selection process were meant only to fill up a certain number of vacancies then the merit list will hold good for the purpose of filling up those notified vacancies and no further. In that case 32 vacancies were advertised but a select list of 129 candidates was prepared. A

18 question arose whether more candidates could be appointed on the basis of the said select list. This Court held that once the 32 vacancies were filled up the process of selection for those 32 vacancies got exhausted and came to an end. I

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)& " - From the above discussion of the caselaw it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not #& # &"

". If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case."

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! .# ' The learned counsel for these appellants have not been able to show that after the revised requisition dated January 24, 1991 whereby the Board was requested to send its recommendation for 8 posts, any further requisition was sent by the Director General of Police for a larger number of posts. Since the requisition was for eight posts of Inspector of Police, the Board was required to send its recommendations for eight posts only. The Board, on its own, could not recommend names of 19 persons for appointment even though the requisition was for eight posts only because the selection and recommendation of larger number of persons than the posts for which requisition is sent. "

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The High Court was, therefore, right in holding that the selection of 19 persons by the Board even though the requisition was for 8 posts only, was not legally sustainable."

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0 ! .,+#&.6&3,;<$( 7.. At the outset it should be noticed that the select list prepared by APSC could be used to fill the notified vacancies and not future vacancies. If the requisition and

20 advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised, even though APSC had prepared a select list of 64 candidates. The select list got exhausted when all the 27 posts were filled. Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The fact that evidently and admittedly the names of the appellants appeared in the select list dated 1772000 below the persons who have been appointed on merit against the said 27 vacancies, and as such they could not have been appointed in excess of the number of posts advertised as the currency of select list had expired as soon as the number of posts advertised are filled up,

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" # 5 &". Therefore, the appellants are not entitled to claim any relief for themselves. The question that remains for consideration is whether there is any ground for challenging the regularisation of the private respondents."

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6&3,=( 7 It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a " ")& #

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21 Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale", otherwise the exercise would be arbitrary.

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(Vide Union of India v. Ishwar Singh Khatri, Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat, State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986, Prem Singh v. Haryana SEB and Ashok Kumar v. Banking Service Recruitment Board.)"

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6&3,$=;( 7 It is well established that an authority cannot make any selection/appointment beyond the number of posts advertised, even if there were a larger number of posts available than those advertised. " )& )"

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. ! , #&.6&3,5=( 7 Mr Subba Rao for the appellant urged that the candidates included in the panels prepared by the

22 Selection Board as far back in June 1984 cannot be held to have the right to appointment against vacancies arising subsequent to preparation of the panels. According to counsel, if that right is conceded it would be arbitrary and contrary to Article 16(1) of the Constitution which guarantees opportunity for all citizens in matters of employment or appointment to any office under the State. There is little doubt about this proposition. The selected

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