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PETITIONER: STATE OF BIHAR

       Vs.

RESPONDENT: KAUSHAL KISHORE SINGH & ORS.

DATE OF JUDGMENT:       10/04/1997

BENCH: K. RAMASWAMY, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R                          O R D E R      Impleadment application is dismissed.      This appeal  by special  leave arises from the judgment of a  learned single  Judge of  the Patna High Court made on February 17, 1986.      A few  admitted facts  are sufficient  for disposal  of this appeal.  Recruitment to  the Class III posts in several categories in the State of Bihar was advertised by the Bihar State Selection  Service Board.  Large number  of candidates applied  for  selection.  There  were  1005  posts  in  all, initially 978  and subsequently 127 posts were included. For 7 categories of posts, special educational qualification of graduation with Commerce, Science, Economics and Mathematics has been  prescribed. For 3 categories of posts only general educational qualifications  have been  prescribed,  All  are required to  have graduation degree as a minimum educational qualification. before  selection of  the candidates, the pay structure of  some of  the posts underwent drastical change. Some of  the posts  carrying higher  pay scale, prior to the advertisement, were  lower grades  with lesser  scale of pay while  some   of   the   posts   due   to   Pay   Commission recommendations were  increased. Be that as it may, when the selection was  made and  appointments were sought to be made of the  selected candidates  as per  the affidavit  filed in this regard,  on a  direction given  on July  30, 1987,  the Government claimed that "the Board considered candidates for various  posts   as  per   availability  at   the  time  and recommended candidates  strictly on  the basis of pay scale, academic qualifications  of job requirements. The High Court proceeded on the premise that no merit list was prepared and the candidates  who had  aptitude certain job or entitlement are required  to be  considered for appointment. Options had not  been   called  for.     Therefore,  the  selection  and appointment of  the candidates  without preparing merit list and without  calling for  the option is arbitrary, violating Article 14 of the Constitution.      The question,  therefore, is: whether the view taken by the High  Court is correct in law? When we asked the learned counsel for  the appellant to place before us the merit list

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substantiate the  stand taken in the affidavit filed in that behalf, the learned counsel is unable to place before us the merit list  except the  publication in  the  newspaper  that candidates were  selected on the basis of the merit. In view of the finding recorded by the High Court that no merit list was  prepared and  in spite  of the  opportunity having been given,  the Government  failed to substantiate that the merit list  was in  fact prepared,  we find  it difficult to accept the  averments made  in the  affidavit.  Under  these circumstances, we proceed on the premise that the merit list has not  been prepared  and the selection  to be made on the basis   of educational  qualification, required  for the job and in    some  Departments  on  the  basis  of  pay  scales available at  that time.  In  this  scenario,  the  question arises: whether  appointment of  the candidates is valid in, law?   When the  Service Commission or the Board selects the candidates, the normal criteria required of is to prepare of the list  of the  candidates selected  in the order of their merit and  then recommends to the Government for appointment to the  post advertised  for. In  that behalf,  it is always upon to  the executive  to allot  the selected candidates in the particular  categories of services in the order Of merit prepared  and   recommended  as   per  the   procedure   and application of  poster and  reservation  and  on  the  basis thereof appointments  be made to the respective Departments. Of course,  it would  be subject  to the  fulfilment of  the qualifications prescribed for the post. Since the Government has not  satisfied us as to have adopted this rationale, the appointment of  selected candidates by pick and choose is an arbitrary exercise  of the  power Under these circumstances, the arbitrariness is writ large.      Accordingly the  recommendation    in  respect  of  the allotment and  appointment of selected candidates is per  se illegal.   It is  true that  the High  Court has pointed out that options are to be called for and the selection is to be made on  the basis of the options given. We do not find that the criteria  laid down by the High court is correct in law. Even if  options were  called  for  and  given,  it  is  not mandatory  for   the  option   of  candidates   is  only   a discretionary matter  and the  Government is  not  bound  to select the  candidates on  the basis  thereof.   Under these circumstances,   the candidates  is who  applied for, though opted for,  have no  acquired rights, much less indefeasible and  absolute  right  for  selection  or  appointment  to  a particular post.  As stated  earlier, the Government have to prescribe an   objective   and rational  method or manner of allotment   of the  candidates selected to the Departments , depending upon  their job  necessity and requirement.  Since the objective  and rational  criteria was  not followed,  we decline to  interfere with the impugned  order Passed by the High court .      The Government  is directed  to act in the light of the law laid  down in   this  order. This  direction would apply only to   those cases where the appointments have not become final and  the   pending matters would be disposed of in the light of this direction.      The appeal  is disposed  of accordingly but without any order as to costs.