Appointment Not An Indefeasible Right But State Can't Be Arbitrary: Gujarat High Court Imposes ₹50,000 Cost

"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.... However, it does not mean that the State has the licence of acting in an arbitrary manner."

The Bench comprising Justice Nikhil Kariel was hearing an application wherein the Respondent authority had issued an advertisement for filling up 27 posts of Child Development Officer (Female), General State Service Class II. The two Petitioners were placed in the waiting list but even after certain candidates refusing to joining in, the Petitioners were not appointed. Several representations were made by the Petitioners pursuant to the non-appointment. Subsequently, despite document verification, the Petitioners were not appointed and therefore, the application was filed against the State Government authority.

It was contended that there were vacancies in at least three posts where candidates had not joined in and yet the Petitioners were not appointed and the process had come to a standstill. After being called for document verification, the Petitioners were entitled to be appointed.

Per contra, the Respondents averred that insofar as the three posts falling vacant, the Gujarat Public Service Commission had recommended only one name vide a government circular. Further, none of the Petitioners could claim appointment as any indefeasible right to appointment.

Justice Kariel opined that a detailed discussion on the matter was not required since, the Single Judge Bench of the High Court had quashed and set aside the impugned government circular which had not complied with the request of the State to appoint three candidates and had instead selected only one candidate.

The Bench observed that the impugned circular had envisaged two situations where in case of medical and education departments, the waiting list should be operated if the selected candidate did not join or resigned, while for other departments, the waiting list could be operated only in case of selected candidates not joining in. This was violative of Article 14 and 16, per the Bench since the circular differentiated between the two departments. Additionally, reliance was placed on Shankarsan Dash Vs. Union of India, it was held:

"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."

Keeping in view the precedents, the Bench directed the Respondent authorities to offer appointment to both Petitioners and to place them on the seniority list. The High Court noted that the Petitioners were compelled to approach the Court due to violation of Articles 14 and 16 and therefore, they were entitled to compensation worth Rs. 25,000 each, payable by GPSC.

Case Title: Nilubahen Gordhanbhai Machhi Versus State Of Gujarat

Case No.: C/SCA/5579/2021