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PETITIONER: JATINDER KUMAR & ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT28/09/1984

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) DESAI, D.A. SEN, AMARENDRA NATH (J)

CITATION:  1984 AIR 1850            1985 SCR  (1) 899  1985 SCC  (1) 122        1984 SCALE  (2)513  CITATOR INFO :  D          1991 SC1612  (1,7,8)  E&R        1992 SC 749  (5)

ACT:      Right to  be appointed  to  posts  for  which  one  was selected  and   recommended  by   the  Subordinate   Service Selection Board, nature of-Whether selection for the purpose of recruitments  against  anticipated  vacancies  create  an enforceable  right   by  Writ   of   Mandamus-Whether   non- appointment on the ground of non-existence of post amount to mala fides  and in  violation of  Articles 14  and 16 of the Constitution and  the  principles  of  Promissory  Estoppel- Constitution  of   India  1950,   Article  320(3),   whether mandatory or directory.

HEADNOTE:      Pursuant to  a requisition  of the Inspector General of Police Punjab  to select  and recommend suitable persons for the post  of Assistant  Sub-Inspectors of  Police against 57 available vacancies  And 170 anticipated vacancies likely to occur as  a result of expected re-organisation of the Police Force by  disbandment of  the Punjab Armed Police Battalion, the appellant  along with  many others  were interviewed and physically tested on various dates and the Board recommended panel of 144 candidates on 22nd December, 1979. The proposal for disbandment  of the  Punjab Armed  Police Battalion  and creation instead  of additional  posts in  the Districts was turned down  by the  Government with  the result  that there were only  57 posts out of which 9 were offered to The wards or the  deceased police  officers  in  accordance  with  the Punjab   Government    Instructions    regarding    priority appointments issued  vide the  letter No. 80(GOI)-SII(3)/73/ 12092 dated 18th April, 1973 and the remaining 48 posts were offered to  the candidates recommended by the Board in order of merit determined by the Board. Since remaining candidates recommended by the Board pursuant to the requisition against anticipated vacancies  were not  appointed as  there were no vacancies the  disgruntled candidates  filed  two  petitions under Article 226 of the Constitution before the High Court. The  petitions  having  been  dismissed,  two  appeals  were preferred under the Letters Patent which were also dismissed

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Hence the appeals by Special Leave.      Dismissing the appeals, the Court ^      HELD: 1.  The fact  that there  is no  provision in the Constitution  which  makes  the  acceptance  of  the  advice tendered by  the Public  Service Commission  when consulted, obligatory renders  the provisions  of Article  320(3)  only directory and not mandatory. [905 E]      2. The establishment of an independent body like Public Service Commission  is to ensure selection of best available persons for  appointment to  the post to avoid arbitrariness and nepotism  in the matter of appointment. The selection by tho Commission,  however, is  only a  recommendation of  the Com- 900 mission and  the final  authority  for  appointment  is  the Government. The  Government may accept the recommendation or may decline  to accept  the same.  But if  it chooses not to accept   the   recommendations   of   the   Commission   the Constitution enjoins the Government to place on the table of the Legislative Assembly its reason and report for doing so. Thus the  Government is  made answerable  to the l louse for any departure  vide Article  323 of  the Constitution. This, however, does  not clothe the appellants with any such right in the instant case. l hey cannot claim as of right that the Government must except the recommendation of the Commission. If, however,  the vacancy is to be filled up, the Government has to make appointment strictly adhering to the order merit as recommended  by the  Public Service Commission, it cannot disturb the  order of  merit according to its own sweet-will except  for   other  good  reasons  namely  bad  conduct  or character. The  Government cannot  appoint person whose name does not  appear  in  the  list.  But  it  is  open  to  the (Government to  decide how  many appointments  will be made. The process  for selection  and selection for the purpose of recruitment against  anticipated vacancies does not create a right to be appointed to the post which can be enforced by a Mandamus. [905 F-H; 906 A-D]      A.N.D.’ Silva  v. Union  of India, [1962] Supp I S.C.R. 968; State  of Haryana  v. Subash  Chander Marwaha  &  Ors., [1974]] I SCR 165: applied.      G.S. Kalkat  v. State  of Punjab  &  Ors.  (Punjab  and Haryana decided on 15th July, 1980; held inapplicable.      3:1. The  allegation about  the  mala  fides  are  more easily made than made out. In the instant case, there are no materials to  warrant the  conclusion that the action of The State Government  in not appointing the appellants was mala- fide especially  when the  post in  anticipation whereof the Board was  asked to  select more  candidates came to an end. There was  no question  of their  appointment against  these vacancies [906 G; 907 A]      3:2. The  action  of  the  Government  is  not  hit  by Articles 14  and 16  of the Constitution and the case of the appellants is  not identical  with those  of the persons who were appointed  as against  57 vacancies  for which original requisition was made to the Board for selecting them [907 B]      3:3. The  notification issued by the Selection Board in this case  was only  an invitation  to candidates possessing specified  qualifications   to  apply   for  selection   for recruitment for  certain posts.  It did  not  hold  out  any promise that  the selection  would be made or if it was made the selected  candidates would  be appointed. The candidates did not  acquire any  right merely by applying for selection or for  appointment after  selection When  the proposal  for disbandment or the Punjab Armed Police Battalion and instead

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creation of  additional posts  for the  district police  was turned down  by the  State Government,  the appellants  were only informed  of the situation and there was no question of any promissory estoppel against the State. [907 C-D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1194 of 1984.      Appeal by  Special leave  from the  Judgment and  order dated the  Ist and 3rd March, 1982 of the Punjab and Haryana High Court in 901 L.P.A No. 188 of 1982      Frank Anthony and Susheel Kumar for the Appellant      M.S. Gujaral and S.K. Bagga for the Respondent      The Judgment of the Court was delivered by      MISRA, J.  The main  question for consideration in this appeal by  special leave is whether a person selected by the Subordinate Service  Selection Board  for direct appointment to the  post of Assistant Sub-inspector of Police has got an unfettered right  to  be  appointed  on  the  basis  of  the recommendation made by the said Board.      The  material   facts  to   bring  out   the  point  in controversy are  as follows.  On 31st  of  March,  1978  the Inspector General  of Police, Punjab, respondent No. 2, sent a requisition  to the  Subordinate Service  Selection  Board (for short,  the Board),  respondent No.  3, to  select  and recommend 7 suitable pensions for the post of Assistant Sub- Inspectors  of   Police.  While   the  matter   was  pending consideration 50  more posts  of Assistant Sub-Inspectors of Police  became  available  and,  therefore,  the  Board  was requested to  recommend 57 suitable persons for these posts. The appellants  along with  many others were interviewed and physically tested  on various  dates ranging  from  24th  of October 1978  to 6th  of February,  1979. Later on after the interviews were  over but  before the  select list  could be finalised by  the Board the Inspector General of Police vide his letter dated 31st of August, 1979 requested the Board to recommend 170  more persons  in addition to 57 already under consideration in anticipation of further vacancies likely to occur as  a result  of expected reorganisation of the Police force. In  that connection a proposal for the disbandment of the Punjab  Armed Police  Battalion and  instead creation of some additional  posts for  the District Police, had already been submitted.  Thus, in  all 277  candidates  were  to  be recruited by  the Board  for  the  post  of  Assistant  Sub- Inspectors of Police. The Board however, recommended a panel of 144 candidates on 22nd of December, 1979.      It appears  that the  proposal for  disbandment of  the Punjab Armed  Police Battalion  and creation  of  additional posts in  the districts referred to above was turned down by the Government and, therefore, the anticipated 170 temporary vacancies  of   Assistant  Sub-Inspectors   against   direct recruitment quota could not be available. Out of the earlier 57 posts, however, 9 were offered to the wards of 902 the deceased  police officers  in accordance with the Punjab Government  instructions   regarding  priority  appointments issued vide  letter No. 80 (GOI)-SII (3)/73 12092 dated 18th April, 1973.  The remaining  48 posts  were offered  to  the candidates recommended  by  the  Board  in  order  of  merit determined by  the Board.  Since  the  remaining  candidates recommended by  the Board pursuant to the latter requisition

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were  not   appointed  as   there  were  no  vacancies,  the disgruntled candidates filed two petitions under Art. 226 of the Constitution before the High Court.      The stand of the petitioners in the two petitions was:      (a)   that the  vacancies had already been communicated           to the  Board and  it was  on that  basis that the           Board had  recommended their names for appointment           and the  State was  bound to  appoint them  on the           basis of the recommendation of the Board;      (b)   that the  State was  bound to  follow the  Punjab           Police Rules  and under rule 12. 3 twenty-five per           cent of  the posts  in the  rank of Assistant Sub-           Inspectors  are   to  be   filled  in   by  direct           recruitment and  the remaining  seventy  five  per           cent are to be filled by promotion;      (c)   that the  State adopted a device of making ad hoc           appointment of  the  Assistant  Sub-Inspectors  by           posting   Head-Constables    as   Assistant   Sub-           Inspectors and  the whole  action was mala fide as           the  State   Government  intended  to  select  and           appoint its own favourites,      (d)     that  the  action  of  the  Government  in  not           appointing them  pursuant to the recommendation of           the Board  is violative  of Arts. 14 and 16 of the           Constitution;      (e)   that even  after the  abolition of  the Board the           candidates recommended  by it could not be refused           appointment on  the ground that the Board later on           became functus officio; and      (f)   that even after the expiry of six months fixed by           the Government  instructions the petitioners could           be appointed on the basis of recommendation of the           Board. 903      The petitions  were resisted by the State Government on the ground  inter alia  that by 7th of January, 1980 only 57 posts in  the direct  recruitment quota became available and appointments were  made. As  regards the remaining vacancies of 170 temporary posts of Assistant Sub-Inspectors, proposal for disbandment  of the  Punjab Armed  Police Battalion  and instead creation  of some  additional posts for the District Police was  eventually turned  down by  the State Government and so  no additional  vacancies became  available  and  the petitioners  could   not  be  appointed.  In  any  case  the petitioners could  not claim  appointment as of right merely because the  Board  had  recommended  their  names.  It  was further   pleaded   that   according   to   the   Government instructions issued  vide letter  No.1673-C-II-56 dated 22nd March, 1957  a time  limit of six months had been prescribed for filling  up the  vacancies by persons recommended by the Board and  after the  expiry of six months a fresh reference had to  be made  to the  Board. As six months prescribed had already expired  the petitioners  could not  be appointed on the basis  of the  recommendation of  the Board.  They  also denied  the   allegation  of   mala  fides  in  the  ad  hoc appointment of  other persons  and further  pleaded that the refusal of  the Government  to appoint  them was  not hit by Articles 14 and 16 of the Constitution.      On a  consideration of  the material  on the record the learned Single  Judge came  to the conclusion that there was neither any  vacancy in  the quota  of  direct  recruits  of Assistant Sub-Inspectors  nor a single post meant for direct recruits is  manned by  an ad  hoc employee, that no case of mala fides  or favouritism has been made out, and that there was no  violation of Articles 14 and 16 of the Constitution.

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A letters  patent appeal preferred by the petitioners before the High  Court was  also dismissed.  The petitioners in the writ petition  feeling  aggrieved  have  filed  the  present appeal by special leave.      The   petitioners   before   this   Court   in   appeal categorically stated  on oath  that 500  promotions had been made by  the State  of Punjab  and that the petitioners were entitled to  25 percent  of those  posts according  to quota rule. They also alleged that 250 vacancies of Assistant Sub- Inspectors were  available in  the C.I.D.  wing alone in the Punjab Police  and 250  persons had  been  promoted  against those vacancies  on ad  hoc basis.  This Court  by its order dated  9th  January,  1984  directed  the  State  to  supply detailed information  to the  petitioners of  the names  and designations of the Head Constables 904 promoted as Assistant Sub-Inspectors between the period from 1979 to  1983. Pursuant  to that  order the  State gave full details of  the various  promotions made  by them during the period 1979 to 1983. rt revealed that the promotions made in various ranges  totalled 646  and  according  to  the  State during 1979-1983,  576 vacancies of Assistant Sub-Inspectors in promotee  quota became  available on account of promotion of 576  Assistant Sub-Inspectors  to the  rank of Offg. Sub- Inspectors, 5 against retirement of such officers, 13 due to death, 2 due to dismissal and 4 due to reversion of promotee Assistant  Sub-Inspectors.   In  addition,  a  total  of  60 additional temporary  posts of Assistant Sub-Inspectors were sanctioned by  the Government  c, during  the period against which such  promotions were made. Thus, out of the total 660 vacancies of  promotee quota during the aforesaid period 646 promotions had been made and on 31 December, 1983 there were 14 vacancies in the rank of Assistant Sub-Inspectors Against promotee quota.      Before we  deal with  the points  raised by  Mr.  Frank Anthony in  support of  the appellants  we must  record  our disapproval of the inconsistent pleas taken by it at various stages. To  start with,  it took up the plea that there Were no ad hoc appointments of Assistant Sub-Inspectors from 1979 but later  on it  went back  upon its previous statement and admitted that  there  were  ad  hoc  appointments  made  but explained the  position by  subsequent affidavits wherein it was stated  that the C.I.D. has no cadre strength of its own and all  the posts, except language Stenographer, are filled in by  taking officers on deputation from other units of the Police department  and no  ad hoc  appointments were made in the  rank   of  Assistant   Sub-Inspectors  and   that   the petitioners could  not be  appointed as  no  posts  for  the petitioners were  available with  the department,  but it is not necessary to refer to those explanations in any detail.      Be  that   as  it   may,  the   fact  remains  that  in anticipation of  the proposal  for disbandment of the Punjab Armed  Police   Battalion  and   instead  creation  of  some additional posts  for the  district police a requisition was made  for   selecting  170   more  candidates   for   direct appointment to the post of Assistant Sub-Inspectors. But the proposal having  been turned  down by  the Government  there were  no  vacancies  and,  therefore,  the  question  arises whether the  petitioners have  got an unfettered right to be appointed even  though the  aforesaid proposal  had not been accepted and consequently there were no vacancies. 905      We now  take up  the contentions  raised by  Mr.  Frank Anthony counsel  for the  appellants, that they have a right to be  appointed to  the post of Assistant Sub-Inspectors on

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the basis of the selection made by the Board      Article 320  of the  Constitution enumerates the duties to be  performed by  the Union  or the  State Public Service Commissions:      (i)   to conduct  examinations for  appointments to the           services of  the Union  and the  services  of  the           State respectively;      (ii) if  requested by  any two or more States so to do,           to assist  those States  in framing  and operating           schemes of  joint recruitment for any services for           which candidates possessing special qualifications           are required;      (iii)to advise  on matters  enumerated under cl. (3) of           Article 320; and      (iv) to  advise on  any matters so referred to them and           any other  matter which  the President,  or as the           case may  be, the  Governor of the State may refer           to them. The fact  that there  is no  provision in  the  Constitution which makes  the acceptance  of the  advice tendered  by the Commission,   when   consulted,   obligatory   renders   the provisions of Art. 320(3) only directory and not mandatory.      The establishment  of an  independent body  like Public Service Commission  is to ensure selection of best available persons for appointment in a post to avoid arbitrariness and nepotism in  the matter of appointment. It is constituted by reasons of  high ability varied experience and of undisputed integrity and further assisted by experts on the subject. It Is true  that they are appointed by Government but once they are appointed  their  independence  is  secured  by  various provisions of  the Constitution.  Whenever the Government is required to make an appointment to a higher public office it is required  to consult  the Public  Service Commission. The selection  has   to  be  made  by  the  commission  and  the Government has  to fill  up the  posts by  appointing  those selected and  recommended by  the Commission adhering to the order of  merit in the list of candidates sent by the Public Service  Commission.   The  selection   by  the  Commission, however, is  only a recommendation of the Commission and the final authority  for  appointment  is  the  Government.  The Government may 906 accept the recommendation or may decline to accept the same. But if  it chooses  not to  accept the recommendation of the Commission the  Constitution enjoins the Government to place on the  table of  the Legislative  Assembly its  reasons and report for doing so. Thus, the Government is made answerable to the  House for  any departure  vide Article  323  of  the Constitution, This,  however, does not clothe the appellants with any  such right. They cannot claim as of right that the Government must accept the recommendation of the Commission. If, however,  vacancy is to be filled up, the Government has to make  appointment strictly adhering to the order of merit as recommended  by the  Public Service Commission. It cannot disturb the  order of  merit according to its own sweet will expect  for   other  good   reasons  viz.,  bad  conduct  or character. The  Government also  cannot  appoint  a  persons whose names  does not  appear in the list. But it is open to the Government to decide how many appointments will be made. The process  for selection  and selection for the purpose of recruitment against  anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus. We  are supported  in our  view by the two earlier decisions of  this Court  in A.N.D.  Silva v. Union of India and State  of Haryana  v. Subash  Chander Marwaha & Ors. The

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contention  of   Mr.  Anthony  to  the  contrary  cannot  be accepted.      It was  next contended  for  the  appellants  that  the Punjab and  Haryana High  Court itself had taken a different view in G.S. Kalkat v. State of Punjab and Ors. from the one taken in the instant case and a copy of the judgment in that case has  been filed.  We have perused the judgment but find that the  facts of  the case  were materially different from the facts of the case in hand.      The next  contention raised on behalf of the appellants was that the action of the Government in not appointing them in spite of the fact that they were selected and their names were recommended  by the  Board for  appointment,  was  mala fide. The  allegations about mala fides are more easily made than made  out. There  are no materials before us to warrant the conclusion  that the  action of  the State Government in not appointing  them was mala fide especially when the posts in anticipation where of the Board was asked to select more 907 candidates came  to an  end. There  was no question of their appointment against those vacancies.      Likewise,  the   contention  that  the  action  of  the Government is  hit by Art. 14 and 16 of the Constitution has no substance.  The case  of the  appellants is not identical with those  of the  persons who were appointed as against 57 vacancies for  which original  requisition was  made to  the Board for selecting them.      An argument  of desperation  was further advanced about promissory  estoppel  stopping  the  State  Government  from acting in the manner it did in not appointing the appellants although their  names had been recommended. The notification issued by  the Board  in this case was only an invitation to candidates possessing  specified qualifications to apply for selection for recruitment for certain posts. It did not hold out any  promise that  the selection  would be made or if it was made  the selected  candidates would  be appointed.  The candidates did  not acquire any right merely by applying for selection or  for  appointment  after  selection.  When  the proposal  for   disbandment  of   the  Punjab  Armed  Police Battalion and  instead creation  of additional posts for the district police was turned down by the State Government, the appellants were duly informed of the situation and there was no question of any promissory estoppel against the State.      It was  further  contended  by  Mr.  Anthony  that  the recommendation made by the Board would remain effective even after the body had become defunct. It is not necessary to go into detail in this contention in as much as the fate of the case depends  upon whether the appellants had a right to get appointed on  the basis  of the selection and recommendation made by the Board. The appellants came to Court to vindicate their right  but if  they had no right there was no question of enforcing that right.      For the  foregoing discussion  the appeal  has no force and therefore, it must fail. It is accordingly dismissed but in the  circumstances of  the case  the parties  should bear their own costs. S.R.                                        Appeal dismissed 908