11 October 2004
Supreme Court
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P.S.E.B. Vs MALKIAT SINGH

Bench: SHIVARAJ V. PATIL,B.N. SRIKRISHNA
Case number: C.A. No.-006116-006116 / 1999
Diary number: 3170 / 1999
Advocates: HARINDER MOHAN SINGH Vs DEBASIS MISRA


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CASE NO.: Appeal (civil)  6116 of 1999

PETITIONER: Punjab State Electricity Board  & Ors.

RESPONDENT: Malkiat Singh  

DATE OF JUDGMENT: 11/10/2004

BENCH: SHIVARAJ V. PATIL & B.N. SRIKRISHNA

JUDGMENT: J U D G M E N T

Shivaraj V. Patil J.

       The appellant-Board acquired 987 acres of land  situated in few villages for setting up of a power project,  which included 10 Kanals and 18 marlas belonging to the  respondent, at Lehra Mohabbat and paid compensation to  the land owners.  On 18.7.1994, the appellant Board, with  a view to rehabilitate the displaced persons who lost their  lands because of acquisition, vide Office Order dated  18.7.1994 constituted a committee for providing  employment on priority basis to one member of the affected  family whose land has been acquired for the aforesaid  purpose.   Pursuant to the said policy decision as contained  in the Office Order dated 18.7.1994, names of 277 persons  were recommended for appointment on priority basis.  The  respondent was one among them.  Out of them, 173  persons were appointed against the available vacancies on  the basis of qualification possessed by them limited to the  maximum of Class-III posts.  On 15.5.1998 and 2.6.1998,  the appellant-Board revised the policy considering that  there was no justification to offer employment to those  persons whose lands acquired were very nominal and they  need not be given appointment.  It was further decided that  instead of the Committee constituted earlier, the Chief  Engineer (GHTP) should re-examine the proposal only of  those land owners whose lands to the extent of 2 acres or  more had been acquired for giving benefit of employment  on priority basis.  It was also decided that no relaxation as  regards qualification or age be given in future.  Pursuant to  this amended policy, cases of the candidates whose lands  were acquired were considered and only three candidates  were recommended for appointment.  All other pending  cases were rejected.  By the Office Order dated 1.7.1998,  the appellant-Board decided to set up a homeopathic  dispensary at Lehra Mohabbat power station for which a  Class-II post of Homeopathy Physician was created for the  welfare of staff and their families stationed at the aforesaid  power project.  A separate committee was also constituted  for selecting a suitable candidate for the said post.   Pursuant to the said Office Order, the Chief Engineer on  17.9.1998 addressed a letter to the District Employment  Officer, Bhatinda to send names of suitable candidates for  the said post by 27th October, 1998.  When things stood

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thus, the respondent approached the High Court by filing  Civil Writ Petition No. 16989/1998 with a prayer to quash  the aforesaid letter dated 17.9.1998, and to quash the  revised policy decision dated 2.6.1998.  Further, direction  was sought to the appellant-Board to appoint him as a  Homeopathic Physician in the Homeopethic dispensary at  Lehra Mohabbat power station.  The appellant-Board  contested the writ petition raising plea that he was not  eligible to be appointed on priority basis under the scheme;  inter alia contenting that the acquired land of the  respondent was less than two acres and as such he was not  eligible for appointment on priority basis in terms of the  policy dated 2.6.1998; the post of Homeopathic Physician  was not a Class-III post and as such he was not eligible  even under the original scheme dated 18.7.1994; more  over, he was found over-aged and no relaxation could be  given under the amended scheme dated 2.6.1998.  The  appellant also contended that merely because the  respondent was one of the 277 candidates whose names  were recommended by the committee for appointment, the  same does not entitle him for the appointment.  Further,  the compensation for the acquired land was given to the  respondent as in case of other land owners and as such the  respondent could not claim appointment under the scheme  as a matter of right.  The Division Bench of the High Court,  by the impugned judgment, allowed the writ petition and  directed the appellant-Board to offer appointment for the  post of Homeopathic Physician to the respondent as soon as  possible, preferably within one month from the date of the  order.  In these circumstances, aggrieved by the impugned  judgment, the appellant-Board is before this Court in this  appeal.

       The learned counsel for the appellant urged: (1) the  High Court committed an error in proceeding on a wrong  footing that the respondent got a vested right by virtue of  Office Order dated 18.7.1994 when his name was  recommended for appointment pursuant to the said order;  the policy could not be changed subsequently to the  disadvantage of the respondent; (2) the decision  to set sup  a homeopathic dispensary and to appoint a Homeopathic  Physician (a Class-II post) was taken on 1.7.1998; this post  was not available on 18.7.1994 and so the respondent  could not make any claim for appointment to the said post  pursuant to the policy dated 18.7.1994, that too  after it  was revised on 2.6.1998; (3) as per the revised policy  dated 1.5.5.1998 and 2.6.1998, the respondent was not  eligible for appointment as he did not satisfy the eligibility  conditions and (4) the respondent could not claim  appointment as a matter of right under the scheme.  The  scheme itself was to give some concession in the matter of  appointment.

       Per contra, the learned counsel for the respondent  made submissions supporting the impugned judgment.   According to him, the name of the respondent having been  recommended for appointment pursuant to the Office Order  dated 18.7.1994, the appellant-Board was not right in  denying appointment to him when several others from the  same list were appointed; the policy in regard to  appointment on priority basis could not be varied  subsequently to the disadvantage of the respondent so as  to take away his vested right and the appellant-Board has  made discrimination unjustifiably in denying appointment to  the respondent.

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       Having considered the respective submissions made  by the learned counsel for the parties, we are of the view  that the High Court committed an error in proceeding on  the basis that the respondent had got a vested right for  appointment and that could not have been taken away by  the subsequent change in the policy.  It is settled law that  mere inclusion of name of a candidate in the select list does  not confer on such candidate any vested right to get an  order of appointment.  This position is made clear in para 7  of the Constitution Bench judgment of this Court in  Shankarsan Dash vs. Union of India [(1991) 3 SCC 47]  which reads:-

"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. 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. Subhash  Chander Marwaha ((1974) 3 SCC 220 : 1973  SCC (L&S) 488 : (1974) 1 SCR 165), Neelima  Shangla v. State of Haryana ((1986) 4 SCC 268  : 1986 SCC (L&S) 759), or Jatendra Kumar v.  State of Punjab ((1985) 1 SCC 122 : 1985 SCC  (L&S) 174 : (1985) 1 SCR 899)".          

       The same position is reiterated and followed by this  Court in All India SC & ST Employees’ Assn. & Anr. vs.   A. Arthur Jeen & Ors. [(2001) 6 SCC 380] and State of  Oriss and Ors. Vs. Bhikari Charan Khuntia and Ors.  [(2003) 10 SCC 144].

       It is not disputed that neither homeopathic dispensary  at Lehra Mohabbat power station nor a post of Homeopathic  Physician was available on 18.7.1994.  The decision to set  up a homeopathic dispensary at Lehra Mohabbat and to  create a post of Homeopathic Physician in the dispensary  was taken only on 1.7.1998 long after the policy decision  dated 18.7.1994 and subsequent to the change in the policy  dated 15.5.1998 and 2.6.1998.  This being the position, the  question of the respondent seeking for appointment to the  said post pursuant to policy decision of 18.7.1994 itself did  not arise.  At any rate, there could be no vested right in  him to claim the appointment to the said post.  The High  Court also committed an error in taking a view that the

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policy decision of 2.6.1998 could not have retrospective  application to the disadvantage of the respondent.  There is  no question of applying the policy retrospectively.  On  17.9.1998 when the names of suitable candidates were  sought from the employment exchange pursuant to the  decision of the Board dated 1.7.1998, it could not be said  that the right of the respondent was taken away when he  did not have any such vested right to get an appointment to  Class-II post of Homeopathic Physician.  It may also be  added that the respondent was not eligible to claim  appointment on priority basis having regard to the changed  policy from 2.6.1998 inasmuch as the land acquired from  him was less than 2 acres and he was also over-aged as on  17.9.1998.  The revised policy made the position clear that  there could be no relaxation in regard to qualification and  the age limit.  Further the scheme was devised on  18.7.1994 and subsequently it was revised only as a  concession to give a helping hand as far as possible to  rehabilitate the displaced families whose lands were  acquired.  The respondent has got compensation for his  land which was acquired.  The scheme giving appointment  on priority basis was only in the nature of concession to  eligible candidates which the respondent could not claim as  a matter of right having taken compensation amount for his  land which was acquired, more so when he did not fulfill the  necessary requirements under the revised scheme.  The  High Court in the impugned order has observed that  "Obviously, if the effort of the respondent is to deny to the  petitioner the job that he seeks in the present case on the  ground that he is overage, action of the respondents cannot  but be termed as discriminatory."  This observation is not  based on proper foundation or facts.  It is not a case where  any mala fide is alleged against the appellant or its officers.   There is nothing to show that anybody was bent upon  denying the appointment to the respondent.            In the light of what is stated above, it is clear that the  respondent was not entitled for an appointment.  The High  Court was not right in directing the appellant-Board to  appoint the respondent to the post of Homeopathic  Physician.  During the course of arguments, we asked the  learned counsel for the respondent whether the respondent  is willing to join in any of the available vacancies even now.  On instructions from the respondent, the learned counsel  submitted that the respondent is only interested in getting  the appointment  to the post of Homeopathic Physician and  not any other post covered by the scheme.

       In view of what is stated above and having regard to  all aspects of the matter, we find that the impugned order  cannot be sustained.  Hence, the appeal is entitled to  succeed.  Accordingly, it is allowed and the impugned  judgment is set aside.  The writ petition filed by the  respondent is dismissed.  No costs.