R. Banumathi, C.J.@mdashThese appeals are preferred against the order dated 7.3.2013, passed in W.P. (S) No. 282/12 and the order dated 1.5.2013 passed in W.P. (S) No. 2727/12, whereby the writ court directed the Jharkhand Public Service Commission (JPSC) to make recommendation of the private respondents in the light of the letter issued by the Department of Home, Government of Jharkhand, vide memo No. 804 dated 16.02.2012. On the basis of the requisition made by the Department of Personnel and Administrative Reforms and Rajbhasa, for 173 posts of Deputy Collector in Jharkhand Administrative Service, and the Department of Home for 45 posts of Deputy Superintendent of Police, JPSC issued Advertisement No. 11/07 for the 3rd Combined Civil Service Examination. After issuance of the aforesaid Advertisement, the Department of Registration, Government of Jharkhand and the Department of Excise and Prohibition separately sent their requisition for recruitment of their Class-1 Officers-15 and 9 posts respectively, which were also included in the 3rd Combined Civil Services Examination to the effect and a press communiqu� was issued. After completing the selection process, JPSC sent provisional recommendation of the successful candidates to the above said four Departments as under:--
2. The Department of Home, in its letter dated 20.01.2011, requested the Deptt. of P & AR to seek recommendation from JPSC from the existing merit list for appointment against six vacant posts of Deputy Superintendent of Police. The Deptt. of P & AR sent the letter dated 26.2.2011 to the Principal Secretary, Department of Home as well as Department of Excise and Prohibition requesting them to apprise about the posts which remained vacant after the recommendation being made by JPSC and if necessary, the same be sent with recommendation to the Deptt. of P & AR. The Department of Home, vide its letter dated 14.03.2011 (Annexure-7) informed the Deptt. of P & AR that out of 45 candidates, who were recommended by JPSC in the 3rd Combined Civil Services Examination for Police Service, six candidates have not joined the posts. In this regard, the Deptt. of P & AR, Government of Jharkhand, sent the letter dated 15.4.2011 (Annexure-8) to JPSC to do the needful.
3. In pursuance of the said letter, JPSC by its letter dated 7.7.2011 recommended the names of six candidates from the wait list including the names of the private respondents for appointment on the post of Deputy Superintendent of Police. The Department of Home, vide its letter dated 27.8.2011, asked JPSC that whether the commission had obtained no objection from the candidates placed above in the merit list. JPSC took notice of the same and vide letter dated 16.9.2011, requested the Deptt of P & AR to obtain preferences/no objection from 22 candidates who were placed above in the merit list as the six candidates were erroneously recommended without obtaining option from the candidates who were above those six candidates in the merit list for the State Police Service. The Home Department was asked to put on hold the recommendation in respect of the six candidates wrongly recommended.
4. The Department of Home issued a Press communiqu� on 8.10.2011 by which option/preference was invited from those 22 candidates who have already joined their services in pursuance of the recommendation made by JPSC. The Department of Home, vide letter No. 804 dated 16.02.2012 (Annexure-12), informed JPSC that for appointment in six vacant posts in Jharkhand Police Service, out of 22 candidates, 12 candidates have given option/preference for Jharkhand Police Service. In the said letter, Home Department asked JPSC to recommend names of five candidates, who were senior in the merit list and have already joined in the Administrative Service; while so stating, the Home Department cancelled the recommendation of the respondents and other candidates and asked JPSC to recommend them to some other department. In response to the Annexure-12, JPSC sent the amended recommendation, recommending the names of five candidates, who have already joined in administrative service but opted for police service, vide its letter dated 17.4.2012 (Annexure-13). Since there was no further request from the Deptt. of P & AR or Deptt. of Registration or Deptt. of Prohibition and Excise, JPSC could not recommend the names of the private respondents for appointment.
5. The private respondents had filed W.P. (S) No. 282/2012 for quashing the Press communiqu� PR-45561 (Home) 2011-12 dated 8.10.2011 issued by the Department of Home by which "no objection certificates were called for from the candidates who have already joined their services". During the pendency of the writ petition, the same was amended seeking to quash the amended recommendation of JPSC dated 17.4.2012 (Annexure-13) and to issue direction to the authorities to appoint the respondents. Another writ petition being W.P. (S) No. 2727/2012 was also filed subsequently with the same prayer.
6. Learned Single Judge disposed of the writ petitions directing JPSC to immediately proceed in accordance with Paragraph 4 of the letter issued by the Department of Home by memo No. 804 dated 16.2.2012 and recommend the names of the private respondents. Learned Single. Judge further directed the State Government that on receipt of the recommendation of JPSC, State Government to issue appropriate order within four weeks thereafter.
7. Learned counsel for JPSC Mr. Sanjay Piprawal contended that merely because the names of the private respondents were included in the wait list, they have no legal right to be appointed. It was further contended that the wait list has already completed one year''s period and as per the law laid down by the Hon�ble Supreme Court, no recommendation can be made after one year of the wait list. Learned counsel submitted that as per Allocation and disposal of Business, Home Department is the parent department only for police service and while so, Home Department has no authority to direct JPSC to make recommendation of the candidates from the wait list as against the vacancies of other department and while so the learned Single Judge was not right in directing JPSC to proceed in accordance with paragraph 4 of Annexure-12-letter issued by the Home Department in Memo No. 804 dated 16.2.2012.
8. Learned counsel for the State-Respondents-Mr. Rajesh Kumar, submitted that the names of three Deputy Collectors/Administrative Service selected from the same examination were recommended for the post of Deputy Superintendent of Police in Jharkhand Police Service on the basis of their position in the merit list, and the Home Department was right in seeking the option/preference from the candidates who were higher in the merit list. Reiterating the submission of learned counsel for JPSC, it was contended that as per the Allocation of Business in the department, the Home Department has no jurisdiction to direct JPSC to make recommendation for other department.
9. Learned counsel for the private respondents-Mr. Rajiv Ranjan contended that when the names of private respondents were recommended by JPSC as against the vacancy in police service, the Home Department ought to have accepted the same and appointed the private respondents as against the vacancies of six posts in police service. Learned counsel contended that Press communiqu� issued by the Home Department on 8.10.2011, seeking for option/no objection from the candidates, who already joined in their service is arbitrary and there is no such Rule of seeking no objection from the candidates, who have already joined services other than the Police Service. It was submitted that such Press communiqu� was issued only to deprive the opportunity of private respondents and learned Single Judge rightly directed the respondents to act on the letter issued by the Home Department dated 16.2.2012 directing JPSC to recommend the names of private respondents as against the vacancies for other department.
10. Reiterating the submission of Mr. Rajiv Ranjan, Mr. A.K. Sahani, learned counsel for the private respondents, submitted that five persons, who were recommended by JPSC for being appointed- in Police Service, were already appointed in Administrative Service and after rendering two years'' service in Administrative Service, under the guise of obtaining option/no objection, have been withdrawn from Administrative Service and such withdrawal of candidates from the other department is arbitrary and unsustainable.
11. On consideration of rival contentions, the following points arise for determination in these appeals:--
(i) Whether the Press communiqu� issued by the Home department on 8.10.2011 calling for preference/option from other 22 candidates is arbitrary and unsustainable?
(ii) Whether recommendation of the names of private respondents by JPSC by it''s letter dated 7.7.2011 (Annexure-9) confers right upon the petitioners to be considered for appointment?
(iii) Whether the Home Department, which is the parent department only for Police Service, can direct JPSC to recommend the names of private respondents to other departments like P & AR, Registration Department etc. and Prohibition & Excise Department?
12. Re: Contention- Calling for objection from other candidates, who were higher in the seniority position.
As against remaining six vacancies of State Police Service in the 3rd Combined Civil Services Examination, 2008, as per the request of Deptt. of P & AR and Home Department, vide Annexure-9 dated 7.7.2011, JPSC recommended the names of private respondents namely Sri Ashutosh Kr. Upadhyay, Sri Sanjay Kr. Jha, Sri Sanjay Kumar, who were in the seniority position of 132, 139 and 141 respectively and three other candidates, (Seniority Position 134, 146 and 189). Since the 22 candidates have given the first choice of service in State Police Service, the Home Department issued Annexure-11 Press communiqu�, in which option was sought for from the said 22 candidates from the list of seniority, who were above in the merit to the private respondents, as to whether they desire to give their joining in State Police Service relinquishing their existing allotted service, in which they have been serving. Out of 22 candidates, who already joined in the other service, 12 have given their option to join State Police Service. Out of the said 12 candidates vide Annexure-12 dated 16.02.2012, Home Department asked JPSC to recommend the names of following live candidates, who are seniors in the merit list than that of the private respondents.
13. The logic behind seeking option from 22 candidates was that they were higher in the merit list and opted Police Service as their first choice of service; but they could not be appointed in Police Service in the initial stage. When the vacancies arose due to non-joining of some candidates, opportunity ought to be given to them to join Police Service. Allowing the said post to be filled up from amongst the wait list candidates would amount to act of discrimination as persons lower in the merit list may get Police Service and those who were above in the said list, may get Administrative Service, which was only their second choice. The Police Service is a prestigious one, which many candidates would like to opt. There is merit in the stand of Home Department that the candidates, who are higher in the merit list ought to be allotted Police Service, which is their first preference and not the candidates who were lower in the merit list. As rightly contended by the Home Department, if option/preference was not sought for from the candidates who are higher in the merit list, it would lead to multiplicity of litigation and therefore Home Department rightly issued Annexure-11-Press communiqu�, ''calling for option/preference from other candidates and there is no arbitrariness in issuing such Press-communiqu�.
14. Whether the Home Department can direct JPSC for making recommendation to other departments?
In paragraph (4) of the Annexure-12 dated 16.2.2012, the Home Department observed as under:--
"4. Cancelling the modified recommendation of six candidates sent vide your letter No. 898 dated 07.07.2011 for Jharkhand Police Service, recommendation be made for other service.
Based on Para (4) of Annexure-12, in which Home Department asked JPSC to make recommendation of the private respondents for other departments, the learned Single Judge directed the State-respondents to proceed in accordance with the direction in paragraph 4 of Annexure-12.
15. In Allocation and disposal of Business of the State of Jharkhand, it is stated that the business of the Government shall be transacted in the department specified in the first schedule and shall be classified and distributed between those departments. First schedule serial No. 2 is the Home Department, serial No. 3 is the Department of Personnel and Administrative Reforms, serial No. 29 is the Department of Excise and Prohibition and serial No. 38 is the Registration Department. As per Allocation and the distribution of Business, the Home Department is the parent department only for Police Service. The Deptt of P & AR is the concerned department for Administrative Service/Jharkhand Civil Services. Filling up of vacancy in other departments, i.e. Deptt of P & AR, Department of Excise and Prohibition and Department of Registration are within the domain of other departments. The Home Department, which is the parent department only for Police Service, cannot direct JPSC to make recommendation of the name of the private respondents for other departments. Even though copy of Annexure-12 dated 16.02.2012 was forwarded to Deptt. of P & AR, the said Department did not ask JPSC to recommend the names for filling up of the consequential vacancies arising in the Administrative. In absence of vacancy position and request made by the concerned department, JPSC has no power to make any recommendation for appointment. The learned Single Judge was not right in directing JPSC to proceed in accordance with paragraph 4 of Annexure-12.
16. Learned counsel for the JPSC contended that the Home Department had no right to give such direction and placed reliance on the case of
When an order is void on the ground that the authority which made it had no power to make it, it cannot give rise to any legal rights. Where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status. Therefore, the Government notification "de-confirming'''' the respondents should be Interpreted to mean that the Government did not accept the validity of the confirmation of the respondents.
17. The learned Single Judge did not keep in view that the Home Department has no power or authority to direct JPSC to make recommendation of the names of the private respondents to other department. Since Home Department had no such power, direction contained in paragraph 4 of Annexure-12 does not confer any legal right upon the private respondents to seek for a writ of mandamus.
18. Whether the private respondents who are in waiting list have right to be appointed?
The names of private respondents were only in the waiting list. It is a settled legal position that merely because a candidate is selected and kept in waiting list, he does not acquire any absolute right to appointment. In the case of
12. In K. Jayamohan V. State of Kerala, this Court held : (SCC p. 171. Para 5)
"5. It is settled legal position that merely because a candidate is selected and kept in the waiting list, he does not acquire any absolute right to appointment. It is open to the Government to make the appointment or not. Even if there is any vacancy, it is not incumbent upon the Government infill up the same. But the appointing authority must give reasonable explanation for non appointment. Equally, the Public Service Commission/recruitment agency shall prepare waiting list only to the extent of anticipated vacancies. In view of the above settled legal position, no error is found in the judgment of the High Court warranting interference".
13. In All India SC & ST Employees'' Assn v. A. Arthur Jeen it was opined; (SCC p. 387, para 10)
"10. Merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarsan Dash v. Union of India. Para 7 of the said judgment reads thus: (SCC pp. 50-51)
''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 any 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 decisions 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. Subash Chander Marwaha, Neelima Shangla v. State of Haryana or Jatinder Kumar v. State of Punjab."
19. The same principle was reiterated in the cases of
20. The contention of the private respondents is that as per recommendation of JPSC since five candidates from the Administrative Service, joined State Police Service and therefore consequential vacancies arose in Deptt, of P & AR and as such the private respondents have the right to be considered for the consequential vacancies in the Administrative Service and therefore learned Single Judge rightly directed the respondents to proceed in accordance with paragraph (4) of the letter issued by the Home Department dated 16.2.2012.
21. Learned counsel for the private respondents contended that since the names of private respondents was recommended by JPSC on 7.7.2011 (Annexure-9), the wait list starts to operate only from 7.7.2011 or from 15.4.2011 (Annexure-8) when the Department of Personnel and Administrative Reforms asked JPSC to send the names of the candidates for filling up six vacancies in the Police Service. It was submitted that 4th Combined Civil Service Examination was notified on 8.7.2010 and six vacancies in the Police Service could not have been carried forward in the 4th Civil Service Examination and therefore, the State respondents are bound to appoint the private respondents in the consequential vacancies arisen in the Administrative Service.
22. To substantiate the above contention, reliance was placed in the case of
23. According to the appellant, JPSC could have made the amended recommendation for appointment against the vacant post but in absence of any direction from the Department of P & AR, Department of Excise and Prohibition and Department of Registration, JPSC is not in a position for making such recommendation when the Home Department sent the letter dated 16.02.2012 to JPSC asking JPSC to recommend the names of five officers, who are higher hi the merit list.
24. The letter of the Home Department dated 16.2.2012 was forwarded to the Deptt. of P & AR for necessary action. In spite of receipt of such letter, the Deptt. of P & AR-has not asked JPSC to make recommendation of the private respondents.
25. Assuming that there were vacancies for the Administrative Service, merely because there were vacancies, the State is not obliged to fill up the vacancies. In the case of
"14. Merely because vacancies are notified, the State is not obliged to Jill up all the vacancies unless there is some provision to the contrary in the applicable rules. However, there is no doubt that the decision not to fill up the vacancies, has to be taken bona fide and must pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution. Again, if the vacancies are proposed to be filled, then the State is obliged to fill them in accordance with merit from the list of the selected candidates. Whether to fill up or not to fill up a post, is a policy decision, and unless it is infected with the voice of arbitrariness, there is no scope for interference in judicial review".
26. Nothing was brought on record to show that non- filling up of vacancies was vitiated by arbitrariness. In this regard, learned counsel appearing for the JPSC and also the State-respondents submitted that in case of non-joining of candidates, the same will be forwarded for the next subsequent requisition. In this regard, our attention was also drawn to Resolution No. 13026 dated 27.11.2012, issued by Deptt. of P & AR, which reads as under:--
"In case of non-joining of a candidate or candidates within the stipulated time limit or in case of the vacancies for other reasons, such vacancies will be forwarded for the next subsequent requisition.''''
27. The private respondents appear to be claiming right to appointment mainly on the basis of letter of JPSC (Annexure-9) dated 7.7.2011, in which the names of the private respondents were recommended against remaining six vacancies of State Police Service in the 3rd Combined Civil Services Examination. Only in pursuance to the request made by the Home Department, JPSC has sent the recommendation (Annexure-9). Such recommendation of the names of the private respondents for appointment in State Police Service does not confer any right upon the private respondents. In the contextual facts, we do not find any arbitrariness in the non filling up of vacancies.
28. The learned Single Judge did not keep in view that merely because the names of private respondents appealing in the waiting list, they had no indefeasible right of appointment. Since the private respondents do not have the right to be considered for appointment, the learned Single Judge was not right in issuing the direction to the State-respondents to consider the names of the private respondents for appointment and therefore the order of the learned Single Judge is liable to be set aside. In the result, the order dated 7.3.2013, passed in WP(S) No. 282 of 2012 and the order dated 1.5.2013 passed in WP(S) No. 2727/12 are set aside and these Letters Patent Appeals are allowed. Consequentially the interlocutory applications are closed.
