Jharkhand High Court
Manoranjan Kunwar @ Manoranjan Kumer vs State Of Jharkhand Through The … on 22 August, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 379 of 2024
Manoranjan Kunwar @ Manoranjan Kumer, aged about 51 years, son of
Late Satya Narayan Kunwar, resident of Sudha Bhawan, Sahana in front of
Block Office, P.O. and P.S. Jamtara, District Jamtara (Jharkhand)
..... Appellant
Versus
1. State of Jharkhand through the Principal Secretary, Women, Child
Development and Social Security Department, Jharkhand Mantralay,
Project Bhawan, Dhurwa, P.O. and P.S. Dhurwa, District- Ranchi
2. Director, Mahila Bal Vikash and Social Security Department (Jharkhand
State Child Protection Society), Room No. 315, 3 rd Floor, F.F.P. Building,
Dhurwa, P.O. and P.S. Dhurwa, District Ranchi
3. Deputy Commissioner-cum-Chairman District Child Protection
Committee, Jamtara, P.O. and P.S. Jamtara, District Jamtara
4. District Social Welfare Officer, Jamtara, P.O. and P.S. Jamtara, District
Jamtara
5. District Child Protection Officer, Jamtara, P.O. and P.S. Jamtara, District
Jamtara. ..... Respondents
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CORAM: HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE ARUN KUMAR RAI
———
For the Appellant : Mr. Vijay Bahadur Singh, Advocate
For the Respondent s : Mr. Mohan Kumar Dubey, AC to AG
———
nd
04/ Dated: 22 August 2024
Per Sujit Narayan Prasad A.C.J
The instant appeal has been filed under clause 10 of the letters
patent appeal directed against the order dated 23.04.2024 passed in
W.P.(S) No. 7114 of 2023 whereby and whereunder while dismissing the
writ petition the learned Single Judge has refused to interfere with the
Advertisement No. 01 of 2023 dated 27.10.2023.
Factual Matrix
2. The brief facts of the case as per the pleading made in the writ
petition which require to be enumerated herein, reads as under:
In pursuant to the Advertisement issued as back as in the year
2016 by the Director, Jharkhand State Child Protection Society for
different posts for all districts of the State of Jharkhand, the petitioner
participated in the selection process of Legal-Cum-Probation Officer for
the District of Jamtara and the name of the petitioner stood at serial no. 1
in the panel.
In the writ petition it is further pleaded that in connection with
clarification regarding a complaint, a memo no. 969 dated 10.08.2019 was
issued from the District Social Welfare Unit and the petitioner was
required to be present on 13.8.2019. The petitioner appeared and clarified
his position and was assured that offer of appointment will be issued to
the petitioner shortly. When no appointment letter was issued, the
petitioner also issued a pleader notice dated 17.01.2020.
It is the case of the writ petitioner has continuously approached the
respondents for issuance of offer of appointment but the same was not
issued and the respondent nos. 2 to 5 issued fresh Advertisement No. 1 of
2023 for the same post in the month of October 2023. It is stated that once
the selection process was over and the petitioner was declared successful,
the respondents were not justified in issuing fresh advertisement.
3. Being aggrieved with the aforesaid acts of the respondents the writ
petitioner had preferred the writ petition being W.P.(S) No. 7114 of 2023
wherein prayer was made for issuance of writ of directing the
Respondents to issue offer of appointment to the post of Legal-Cum-
Probation Officer (D.C.P.S. 4) to the petitioner and further for quashing of
Advertisement No.01 of 2023 issued on 27.10.2023 by the District
Appointment Committee.
4. The learned writ Court after appreciating the rival claims and taking
into consideration that the decision which was taken way back in 2019 to
cancel the selection process followed by fresh advertisement in the year
2022 was never under challenge and is not under challenge in this petition
also and the fresh advertisement is a result of change in policy of the
respondents pursuant to order passed in W.P. (C) No. 3894 of 2021, has
refused to pass any positive direction in favour of the writ petitioner.
5. Being aggrieved with the order of writ Court the present appeal has
been preferred.
6. It is evident from the factual aspect of the instant case that the
petitioner had participated in the selection process for the post of Legal-
Cum- Probation Officer in pursuant to advertisement of year 2016 and
his name was appeared in the panel. The recruitment process was on
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contractual basis and ultimately the recruitment process could not be
finalized till 2019 and decision was taken by the respondents as back as
on 21.10.2019 to initiate fresh process by issuing an advertisement by
stating that much time has elapsed from the date of advertisement.
7. It appears that pursuant to the decision dated 21.10.2019 an
advertisement was issued in the year 2022 which was never challenged
by the petitioner. However, the advertisement of the year 2022 was also
canceled in view of the judgment passed by this Court in W.P. (C) No.
3894 of 2021 wherein the condition for passing matriculation or 10+2
examination from educational institution situated within the State of
Jharkhand was held to be illegal and therefore the illegality with regard
to such condition was to be removed and a consequential letter dated
06.07.2023 was issued by which the advertisement dated 16.9.2022 was
canceled resulting in issuance of fresh advertisement. From the counter
affidavit it is evident that selection process pursuant to the fresh
advertisement is almost over and at the stage of publication of the result.
8. The grievance of the appellant is that there is no valid reason for
cancellation of the advertisement of the entire recruitment process which
was initiated in the year 2016 and at that time, writ petitioner was
eligible for consideration for the aforesaid post on contract basis but
without any valid reason, since it was cancelled merely because there
was delay in the process of selection, reason assigned prejudicing the
case of the writ petitioner since at the moment, the petitioner has lost his
chance for consideration due to crossing of the maximum age barrier.
9. The writ petitioner on the aforesaid pretext has approached to this
Court under Article 226 of the Constitution of India being W.P. (S) No.
7114 of 2023 but the learned Single Judge has declined to pass positive
direction by assigning the reason that no right will be said to be accrued
in favour of the petitioner by merely making an application for
consideration of his candidature, which is a subject matter of the present
appeal.
Submission on behalf of learned counsel for the appellant:
10. Mr. Vijay Bahadur Singh, learned counsel appearing for the
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appellant/ writ petitioner has submitted that the learned Single Judge has
not appreciated the factual aspect in the order, since without any fault on
the part of the appellant/ writ petitioner who was a candidate in terms of
the advertisement issued in the year 2016 and if the delay has been
caused which was ground taken in coming out with the advertisement,
sometime in the year 2022 and subsequent thereto in the year 2023, for
which the writ petitioner cannot be held to suffer.
11. The learned counsel submits that once the selection process was
over and the petitioner was declared successful, the respondents were not
justified in issuing the fresh advertisement but the learned Single Judge
without appreciating the aforesaid fact has dismissed the writ petition,
therefore, the present appeal.
Submission on behalf of learned counsel for the State:
12. Mr. Mohan Kumar Dubey, learned counsel appearing for the State
while on the other hand has submitted by defending the impugned order
that the learned Single Judge while deciding to pass positive direction,
the same cannot be said to suffer from an error in view of the specific
reason assigned as on paragraph 11 thereof.
13. The learned State counsel has further submitted that the learned
Single Judge has also considered that the advertisement was issued way
back in the year 2016 for contractual appointment and the selection
could not be made, thus decision was taken back in the year 2019 to
cancel the same and thereafter in 2022 fresh advertisement was issued
making therein a condition of passing of 10th examination by one or
other candidate from the institution situated in the territory of the State of
Jharkhand, but the aforesaid policy decision of the State since was
quashed and set aside by this Court and thereafter the occasion has
cropped up for coming out a fresh advertisement in the year 2023.
14. It is contended that the decision to cancel the selection process
which was taken way back in the year 2019 has neither been mentioned
in the writ petition nor the same is under challenge in the present
proceedings.
15. It has further been submitted that the advertisement was issued for
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short term contract, since then much time have elapsed as such there was
no illegality in cancelling the selection process.
16. The learned counsel further submits that there was a decision in
connection with the change of policy regarding local resident with
respect to the class-10 and class-12 qualification, the impugned selection
process pursuant to Advertisement no. 01 of 2023 was issued is in
consonance with the said policy and merely because the name of the
petitioner appeared in the panel, the same does not crystalizes any right
in favour of the petitioner.
17. The learned Single Judge after taking into consideration aforesaid
aspect of the matter, if has dismissed the writ petition, it cannot be said
to suffer from any error.
Analysis
18. We have heard learned counsel for the parties and gone through
the finding recorded by the learned Single Judge in the impugned order.
19. The issue which fell for consideration as has been agitated on
behalf of the appellant/ writ petitioner is that the advertisement which
was floated in the year 2016 to fill up the post of Legal-cum-Probation
Officer on the contract basis, has been delayed in completion of the
recruitment process and subsequent thereto, fresh advertisement had
been issued and in the meanwhile, the appellant/ writ petitioner had
crossed the maximum age barrier. It is contended that why the appellant/
writ petitioner will be made to suffer for any laches committed on part of
the authority concerned.
20. This Court before proceeding to examine the legality and propriety
of the impugned order, deem it fit to refer the law on accrued /vested
right.
21. The vested right has been defined in Black’s Law Dictionary (6th
Edition) at page-1563, means fixed; accrued, settled, absolute, complete.
Having the character or given the rights of absolute ownership, not
contingent, not subject to be defeated by a condition precedent. Rights are
‘vested’ when right to enjoyment, present or prospective, has become
property of some particular person or persons as present interest, mere
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expectancy of future benefits, or contingent interest in property founded
on anticipated continuance of existing laws, does not constitute vested
rights.
In Webster’s Comprehensive Dictionary (International Edition) at
page-1397, the word ‘vested’ is defined as a tenure subject to no
contingency, complete, established by law as a permanent right, vested
interest.
The word ‘vested’ is normally used where an immediate fixed right
in present or future enjoyment in respect of a property is created. With the
long usage the said word ‘vest’ has also acquired a meaning as “an
absolute or indefeasible right”.
It had a ‘legitimate’ or “settled expectation” to obtain right to enjoy
the property etc. Such “settled expectation” can be rendered impossible of
fulfillment due to change in law by the legislature. Besides this, such a
“settled expectation” or the so-called “vested right” cannot be
countenanced against public interest and convenience which are sought to
be served by amendment of the law. Thus, “vested right” is a right
independent of any contingency. Such a right can arise from a contract,
statute or by operation of law.
A vested right can be taken away only if the law specifically or by
necessary implication provide for such a course. In the light of the
definition of the “vested right”, it is evident that right accrues to person or
persons attached to an institution or building or anything whatsoever,
meaning thereby, if an incumbent is claiming a vested right, he is to
substantiate before the court of law that the right has been created in his
favour by an order passed in pursuance to the applicable law.
22. Further, it is evident from the meaning of the ‘vested’ as per the
Black’s Law Dictionary which means the settled or absolute right and the
settled or absolute right will only be said to be a right in this nature if the
right has been created as a permanent right.”
23. The word accrued and vested right has elaborately been dealt with
the Hon’ble Apex Court in the case of MGB Gramin Bank v.
Chakrawarti Singh, (2014) 13 SCC 583, relevant paragraph needs to be
6
referred herein which reads as under:
“11. The word “vested” is defined in Black’s Law Dictionary (6th
Edn.) at p. 1563, as: “Vested.–fixed; accrued; settled; absolute;
complete. Having the character or given in the rights of absolute
ownership; not contingent; not subject to be defeated by a condition
precedent. Rights are „vested‟ when right to enjoyment, present or
prospective, has become property of some particular person or
persons as present interest; mere expectancy of future benefits, or
contingent interest in property founded on anticipated continuance of
existing laws, does not constitute „vested rights‟.”
12. In Webster’s Comprehensive Dictionary (International Edition) at
p. 1397, “vested” is defined as law held by a tenure subject to no
contingency; complete; established by law as a permanent right;
vested interest.
13. Thus, vested right is a right independent of any contingency and it
cannot be taken away without consent of the person concerned. Vested
right can arise from contract, statute or by operation of law. Unless an
accrued or vested right has been derived by a party, the policy
decision/scheme could be changed.”
24. It is evident from the aforesaid judgment that the accrued right is
said to be a right which has legally been accrued in favour of a party said
to be vest upon him.
25. In the backdrop of the aforesaid position of law, this Court is now
proceeding to examine as to whether the writ petitioner has got
any vested right of appointment just because his name was found place in
panel as per the earlier advertisement.
26. This Court in the background of the aforesaid legal proposition
and adverting to the factual aspect of the present case is of opinion that
the petitioner has made an application for consideration of his
candidature in pursuant to the advertisement floated in the year 2016 to
fill up vacancy for the Legal-cum-Probation Officer post on contract
basis. Recruitment process could not be concluded, therefore and the
competent authority has taken decision as on 21.10.2019 to float fresh
advertisement and initiate fresh process by issuing an advertisement,
resulting into the cancellation of the entire recruitment process sometime
in the year 2019.
27. In pursuant to the decision as on 21.10.2019, subsequently fresh
advertisement was issued in the year 2022. But, in the said advertisement
a mandatory condition was imposed wherein one or the other candidate
is to possess matriculation/10+2 passed certificate from the educational
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institution within the territory of State of Jharkhand. The Said Niyojan
Niti has been quashed and set aside by the co- ordinate bench of this
court in W.P(s) no.- 3894 of 2021.
28. Subsequent thereto, the competent authority has come out with the
fresh advertisement sometime in the year 2023, but by that time, the
petitioner has crossed the maximum age barrier and hence he could not
be able to participate in process of selection as advertise in the year
2023.
29. The petitioner therefore has approached to this Court for
consideration of his candidature based upon the advertisement floated in
the year 2016. The question of consideration of his candidature on the
basis of advertisement issued in the year 2016 does not arise as the entire
recruitment process has been cancelled.
30. Further, the cancellation process has never been challenged as it
has also been taken as the ground by learned Single Judge of this Court
while dismissing the writ petition.
31. Thus, on the basis of the aforesaid admitted fact, it is evident that
the question of accrued right is not available in favour of the petitioner in
view of the fact that although the writ petitioner had participated in the
process but due to non issuance of the offer of appointment, the
recruitment process cannot be said to be concluded and thereby, it is not
a case where the petitioner can claim his right for appointment on the
principle of accrued or vested right.
32. Further, it is settled position of law that till the date of offer of
appointment candidate has got no indefeasible right to claim such
appointment merely on the basis of recommendation of their name in the
final select list. Reference in this regard be made to the judgment
rendered in the case of Shankarsan Dash v. Union of India [(1991) 3
SCC 47], wherein at paragraph 7, it has been held as under:
“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 is8
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. Subash Chander Marwaha, Neelima
Shangla v. State of Haryana or Jatinder Kumar v. State of Punjab.”
33. Likewise the Hon’ble Apex Court in the case of State of
Orissa v. Rajkishore Nanda, (2010) 6 SCC 777 wherein by taking aid of
its own judgment rendered in the case of Shankarsan Dash v. Union of
India (supra) the Hon’ble Apex Court has observed that mere inclusion of
the candidate’s name in the select list does not confer any right to be
selected and If the selection process is over, select list has expired and
appointments had been made, no relief can be granted by the court at a
belated stage. For ready reference the relevant paragraph of the aforesaid
Judgment is being quoted as under:
“15. A Constitution Bench of this Court in Shankarsan Dash v. Union
of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC
95 : AIR 1991 SC 1612] held that appearance of the name of a
candidate in the select list does not give him a right of appointment.
Mere inclusion of the candidate’s name in the select list does not
confer any right to be selected, even if some of the vacancies remain
unfilled. The candidate concerned cannot claim that he has been
given a hostile discrimination. (See also Asha Kaul v. State of
J&K [(1993) 2 SCC 573 : 1993 SCC (L&S) 637 : (1993) 24 ATC
576], Union of India v. S.S. Uppal [(1996) 2 SCC 168 : 1996 SCC
(L&S) 438 : (1996) 32 ATC 668 : AIR 1996 SC 2340], Bihar Public
Service Commission v. State of Bihar [(1997) 3 SCC 198 : 1997
SCC (L&S) 775 : AIR 1997 SC 2280], Simanchal Panda v. State of
Orissa [(2002) 2 SCC 669 : 2002 SCC (L&S) 369], Punjab
SEB v. Malkiat Singh [(2005) 9 SCC 22 : 2006 SCC (L&S) 235],
Union of India v. Kali Dass Batish [(2006) 1 SCC 779 : 2006 SCC
(L&S) 225 : AIR 2006 SC 789], Divisional Forest Officer v. M.
Ramalinga Reddy [(2007) 9 SCC 286 : (2007) 2 SCC (L&S)
410 : AIR 2007 SC 2226], Subha B. Nair v. State of Kerala [(2008) 7
SCC 210 : (2008) 2 SCC (L&S) 409], Mukul Saikia v. State of
Assam [(2009) 1 SCC 386 : (2009) 1 SCC (L&S) 186 : AIR 2009 SC
747] and S.S. Balu v. State of Kerala [(2009) 2 SCC 479 : (2009) 1
SCC (L&S) 388].
16. A select list cannot be treated as a reservoir for the purpose of
appointments, that vacancy can be filled up taking the names from
that list as and when it is so required. It is the settled legal
proposition that no relief can be granted to the candidate if he
approaches the court after the expiry of the select list. If the
selection process is over, select list has expired and appointments
had been made, no relief can be granted by the court at a belated
stage. (Vide J. Ashok Kumar v. State of A.P. [(1996) 3 SCC 320 :
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1996 SCC (L&S) 707], State of Bihar v. Mohd. Kalimuddin [(1996)
2 SCC 7 : 1996 SCC (L&S) 389 : (1996) 32 ATC 821 : AIR 1996 SC
1145], State of U.P. v. Harish Chandra [(1996) 9 SCC 309 : 1996
SCC (L&S) 1240 : AIR 1996 SC 2173], Sushma Suri v. Govt. of
NCT of Delhi [(1999) 1 SCC 330 : 1999 SCC (L&S) 208], State of
U.P. v. Ram Swarup Saroj [(2000) 3 SCC 699], K.
Thulaseedharan v. Kerala State Public Service Commission [(2007) 6
SCC 190 : (2007) 2 SCC (L&S) 427], Deepa Keyes v. Kerala
SEB [(2007) 6 SCC 194 : (2007) 2 SCC (L&S) 430] and Subha B.
Nair [(2008) 7 SCC 210 : (2008) 2 SCC (L&S) 409].)”
Conclusion
34. It is evident from the aforesaid judgment that even on the basis of
recommendation made no right will be said to be accrued for the purpose
of appointment to the post rather right will be said to be created only
after issuance of appointment letter in favour of one or the other but
herein admitted position is that no appointment letter was ever issued
rather entire process was cancelled in the year 2019.
35. In pursuant to the decision as on 21.10.2019, subsequently fresh
advertisement was issued in the year 2022. But, in the said advertisement
a mandatory condition was imposed wherein one or the other candidate
is to possess matriculation/10+2 passed certificate from the educational
institution within the territory of State of Jharkhand. The Said Niyojan
Niti has been quashed and set aside by the co-ordinate bench of this court
in W.P.(S) No. 3894 of 2021.
36. Subsequent thereto, the competent authority has come out with
the fresh advertisement sometime in the year 2023, thus in absence of
any accrued right, no consideration can be given for appointment of the
writ petitioner/appellant to the post in question.
37. So far, challenging the fresh advertisement of the year 2023 is
concerned i.e. subsequent to the cancellation process of the recruitment
process which was initiated in the year 2016, but since the entire process
of cancellation has not been challenged by the petitioner, therefore, the
question in subsequent advertisement of the year 2023 will not create a
right to consider the candidature of the appellant/writ petitioner.
The matter would have different if the entire selection process
which has been cancelled by the State of Jharkhand could have been
challenged but the same was never challenged, resulting into advertising
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fresh advertisement to fill up the post under contract basis.
38. This Court is of considered view that the learned single Judge has
taken into consideration all aspects of the matter as it would be evident
from para 12 to 15 of the order dated 23.04.2024, wherein the
consideration has been given that the selection process has already been
cancelled in the year 2019 which had began in pursuant to the
advertisement issued in the year 2016 and thereafter, in year 2022
subsequent advertisement stands cancelled due to quashing and setting
aside of the rule pertaining to fixing of the educational qualification in
the advertisement and in consequent thereof, a fresh advertisement had
been issued in the year 2023 and further the decision which was taken
way back in 2019 to cancel the selection process followed by fresh
advertisement in the year 2022 was never under challenge and is not
under challenge in this petition also and the fresh advertisement is a
result of change in policy of the respondents pursuant to order passed in
W.P. (C) No. 3894 of 2021.
39. On the basis of discussion made hereinabove, this Court is of
considered view that the order passed by learned Single Judge requires
no interference.
40. Accordingly, the present intra court appeal stands dismissed.
41. Pending I. A’s., if any, stands disposed of.
(Sujit Narayan Prasad, A.C.J.)
(Arun Kumar Rai, J.)
Pramanik/ A.F.R.
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