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Synopsis

The Supreme Court has said that an empanelled or selected candidate can claim no right to appointment if the State has cogent and germane grounds for not making the appointment. However, at the same time, it is also the law that the appointing authority cannot ignore the select panel or decline to make the appointment on a whim.

A bench of Justices Dipankar Datta and Manmohan emphasised that the law is clear that a policy decision not to carry the process forward must be taken bona fide. There has to be a justifiable reason if the process is abandoned midway, and such a decision must not suffer from the vice of arbitrariness or the whims of the decision-maker. This acts as a check on the employer’s power to decide against making any appointment from the select list despite the availability of vacancies in the advertised or notified public posts.

Any decision not to appoint despite the existence of vacancies and a valid select list is, obviously, in the nature of a policy decision. It has to be borne in mind that securing public employment is the dream of many who put their heart and soul into preparing for it, the bench said.

The court also pointed out that, nowadays, aspirants undertake rigorous study sessions as well as training modules to equip themselves, which also comes at a heavy cost. That apart, since every recruitment process necessarily involves substantial expenses borne by the public exchequer, and at the same time, the aspirants (who, as per their own estimation, have performed sufficiently well and therefore stand a good chance of being appointed upon figuring in the select list) cherish fond hopes of a bright and secure future, the bench said.

The court also said it does not find it acceptable that aspirants, despite not having an indefeasible or vested right to appointment, also do not have the right to question any decision adverse to their interests and affecting their goal of securing public employment. Whether, and to what extent, any relief should be granted must depend on the facts of each case.

The apex court approved the Assam government’s decision of July 4, 2016, to cancel the recruitment process initiated in 2014 to fill 104 posts of Constables in the Assam Forest Protection Force, following a change in political regime after the State Assembly polls.

A fresh notification was issued on April 14, 2017, for the recruitment of 132 posts.

On a writ petition, the Gauhati High Court in 2019 held that the irregularities could be rectified without disturbing the selection process by refixing or reallocating candidates in accordance with merit, category, and status.

The division bench in 2021 upheld the view taken by the single judge bench and dismissed the writ appeal, holding that the veracity of the alleged irregularities or illegalities had not been ascertained by a duly constituted inquiry committee. It held that the government's decision to cancel the select list was not vitiated to warrant invalidation, either by the application of the doctrine of Wednesbury unreasonableness or proportionality.

In its appeal, the state government submitted that the selection was made solely on the basis of an interview, preceded by a physical test, which was a qualifying requirement for appearing in the interview, with no written examination.

Out of the 104 selected candidates, 64 belonged to Kamrup (Metro) and Kamrup (Rural) districts, and not a single candidate had been selected from as many as 16 districts, including the Hill districts, the Barak Valley districts, and the Bodoland Territorial Council (BTC) districts, which have a population of 1.60 crore. Among other concerns, the government argued that mandatory reservation rules were also not followed for Scheduled Castes, Scheduled Tribes, and Scheduled Tribes (Plain), among others.

After hearing the arguments, the bench said that it cannot be gainsaid that the factors of “when,” “which,” “what,” “who,” and “how” associated with a recruitment/selection process are the prerogative of the recruiting authority and the selectors. However, at the same time, the process must be conducted in accordance with statutory provisions, if any, and must adhere to principles of absolute fairness and complete non-arbitrariness.

"Normally, it is not for the courts to interfere unless the process smacks of mala fides. However, the right to be considered for public employment being a Fundamental Right, it would be safe and prudent to have recruitment rules to govern the process of selection so that the best possible talent is appointed in public service," the court said.

Assessing the merit of candidates aspiring for public employment based on a prescribed standard would not only provide a level playing field for each of them but also ensure that the excellence of the institution to which they are appointed is maintained. The proficiency of its members and staff directly depends on the quality and merit of those selected. This necessitates that the selection process be conducted without any hidden taint or masked mala fides, the bench said.

"Last but not the least, having regard to present times when corruption has been held to be a walk of life by certain responsible citizens of the country, it would have been desirable if the process of recruitment of 104 Constables were conducted after framing of recruitment rules and also prescribing a written examination to keep the process absolutely above board," the bench opined.

The bench also observed that conducting recruitment processes solely through executive orders and without statutorily prescribed standards often invites avoidable litigation, leading to undesirable outcomes.

Considering the peculiar fact situation, the bench said the high court ought to have applied the proportionality test.

The court also said, "Fostering diversity and inclusivity in public service, ensuring that there is representation from almost all the districts including from the hills and historically backward classes without, however, compromising merit should be the commitment of all Governments of States in the North-Eastern part of the country. The decision to cancel the select list has the marks etched to proceed towards such commitment and achieving the greater good. Such a noble initiative was, by no means, open to scrutiny by the judicial review court."

The court opined that the writ court, instead of substituting its view or imposing its own decision as to what should have been the correct course of action for the government, ought to have maintained a degree of judicial restraint.

Upon an overall study of the decision taken in 2016 by the Principal Chief Conservator of Forests & Head of Forest Force, Assam, the bench found that no person of reasonable prudence would doubt that the process bore signs of discernible taint, suggesting impropriety and bias, if not corruption. Applying the test of proportionality, the bench held that the successor government's decision to cancel the process initiated by the previous government could not be said to be so disproportionate or incommensurate with the detected illegalities and irregularities that judicial interference was warranted.

The court allowed the state government’s appeal and quashed the high court's judgments. It also granted the state government the liberty to proceed with filling the 104 Constable posts without delay by publishing a fresh advertisement.

The bench further said that it would be desirable for rules to be framed for recruitment to preempt any allegations of bias or arbitrariness. Using its power under Article 142 to do complete justice, the court directed that the respondents be granted relaxation in age and physical eligibility criteria, considering that almost a decade had passed since the earlier recruitment process was initiated.

Case Title: State of Assam & Ors Vs Arabinda Rabha & Ors