Excelsior Correspondent
Srinagar, June 6: High Court today ruled the employer cannot deny appointment to the meritorious candidate arbitrary and without any cogent reason and directed the concerned department to offer appointment to the eligible candidate.
The petitioner-Ravinder Singh was found a meritorious candidate for the post of driver in the Department of Youth Services and Sports (YSS) way back in the year 2014 after he responded to the advertisement notification and came to be declared eligible on scrutiny of his documents for the post in question.
His counsel argued before the court of Justice Javed Iqbal Wani that he appeared before the Selection Committee and performed well; however, having got suspicious on account of non-finalization of the process of selection he applied to the respondent-department to know the result of selection process.
He was provided the information revealing that the he secured more marks than all other four candidates, who had participated in the selection process, but despite that one of the candidates had been appointed in terms of order dated 23.05.2014 without appointing him though rated higher in the order of merit. The information furnished to him also reveals that the selected candidate was ineligible being overage on the cut-off date provided in the Advertisement Notice.
The department in its response to the plea of petitioner-Singh admitted that the petitioner and selected candidate secured 07 points and petitioner secured 08 points in the selection process but have not expressed any justification for appointing a less meritorious candidate than the meritorious candidate, excepting that the process of filling of post of Driver in Kashmir Province has been kept on hold.
Justice Iqbal while dealing with the issue as to what are the rights of a candidate, who competes in a selection process and can an employer, who, admittedly, is a “State” within the meaning of Article 12 of the Constitution selectively make appointments regardless of the merit determined in a selection process.
Court recorded that there can be no dispute on the proposition of law that mere selection does not confer any right of appointment and that an employer has a right to abandon the selection process at any time.
Court however said can the employer do it arbitrarily without any reasonable and just cause on the sweet will of the employer and can an employer be permitted to resort to pick and choose method while making appointment from a selection list by appointing a less meritorious candidate and leave more meritorious candidate.
“The answer has to be emphatic “no not at all” because ours is a country governed by rule of law and arbitrariness is an anathema to the rule of law. When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same, they spend time in filling the form and pay the application fee and thereafter, spend time to prepare for the examination, as also money to travel to the place, where tests in furtherance of the selection process is held. Yet the employer or the State has to give justifiable non-arbitrary reasons for not offering such successful qualified candidates’ appointment, particularly, when the employer is State, as it is bound to act and follow the mandate of Article 14 of the Constitution”, Court recorded.
The court also added that the employer cannot without any reason decline to fill up a post without any lawful justification, which justification must not only be reasonable, should as well be not arbitrary, capricious and whimsical. “The said inaction of the respondent Council cannot, but said to be arbitrary, capricious and whimsical besides colourable exercise and abuse of power to say the least”, reads the judgment.
Court with these findings on the issue involved in the matter allowed the plea of petitioner-Singh and directed the YSS department to offer appointment to the petitioner against the post of Driver and admit him to all the consequential benefits, to which he would be entitled thereto.
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