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PETITIONER: STATE OF BIHAR

       Vs.

RESPONDENT: KUMAR PROMOD NARAIN SINGH & ORS.

DATE OF JUDGMENT:       10/04/1997

BENCH: K. RAMASWAMY, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                          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 t he 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 drastic  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  for  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 to substantiate  the stand  taken in  the affidavit filed in

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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  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 came to be made on the basis of educational qualifications 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  open 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 roster 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  recommendations  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  Government to  accept options of the candidates and make  appointment   to  the   post.  Asking  for  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 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.