SUPREME COURT OF INDIA

 

Vice Chancellor, University of Allahabad

 

Vs.

 

Dr. Anand Prakash Mishra

 

(K. Ramaswamy and G.T. Nanavati JJ.)

 

16.12.1996

 

ORDER

 

Leave granted.

 

We have  heard learned  counsel on both the sides.

 

Prior to December 12, 1993, the appellant had initiated the process of selection to various posts in the appellant university. The UP Public Services (Reservation of Scheduled Caste, Scheduled Tribes and Backward Classes) Act 4 of 1994 (for short, the `Act') came into force with effect from March 22, 1994. By operation of Section 1(2), the Act came into force from December 11, 1993, i.e., the date on which ordinance was issued. Section 2(c) of Act defines "public services and posts" means the services and posts in connection with           the affairs of the State and includes services and posts in clause (iv) which is as under:

 

"iv)  an educational  institution owned and controlled by  the State Government or which receives grants in aid  from the  State Government, including a  university established by or under a  Utter Pradesh  Act, except an institution  established and  administered by   minorities referred  to   in clause (I)  of Article 30 of the Constitution."

 

Section 3 of the Act applies reservation in favour of Scheduled Castes, Scheduled Tribes and  other Backward Classes, at  the stage of direct recruitment, the following percentage prescribed therein thus:

 

 (a) in the case of scheduled Castes     21 per cent

 (b) in the case of Scheduled Tribes     02 per cent

 (c) in the case of other backward

             classes of citizens                        27 per cent

 

Section 4 of the Act casts responsibility on and thrust powers on specified offers for compliance of the provisions of the Act. The State Government may, by notified order, entrust the appointing authority or any officer or employee with the responsibility of ensuring compliance of the provisions of the Act. It is not in dispute that the State Government had issued a  notification dated  may  5, 1995 entrusting the responsibility for implementation  of the provisions of  the Act, in relation  to the appointment and services of  the posts in  the  university,  on  the  Vice-Chancellor. Thus, the Vice-Chancellor is empowered and made responsible to implement the provisions of the Act.

 

Section 6 gives power to the Government to call for the records and direct enforcement of the provisions of the Act.

It reads thus:

 

"6. Power        to call for record.– If it comes to the notice of the State Government, that any persons belonging to  any of the categories mentioned in sub-section (1) of Section 6 has been adversely affected on account of non- compliance of  the  provisions of this  Act or the rules made thereunder or  the Government order in this  behalf by the  appointing authority, it  may        call  for  such records and  take such action as it may consider necessary."

 

Section 15       which is  relevant for the purpose of this case is as under:

 

"15. Savings.-(1) the provisions of this Act shall not apply to cases in which selection process has been initiated  before   the commencement of  this Act and such cases  shall   be dealt with  in accordance with  the provisions  of law and  Government orders as they stood before such commencement. Explanation.-  For the purposes of this  sub-section the   selection process shall  be deemed to have been  initiated  where,  under  the relevant service rules, recruitment is to be made on the basis of -

 

(i) written test or interview only, the written  test or the interview, as the case may be, has started, or

 

(ii)   both    written   test   and interview,       the  written  test  has started.

 

(2)  The  provisions  of  this  Act shall not apply to the appointment, to be  made under the Uttar Pradesh Recruitment   of          Department   of Government Servant Dying in Harness Rules, 1974."

 

It is not in dispute that on the basis of the aforesaid implementation of the provisions of the Act, in February 1995, fresh advertisement came to be made for appointment of two Readers in Chemistry.  On a  representation made by the respondents, the  Chancellor,  exercising  the       power  under Section 68  of the  U.P. State Universities Act, 1973,  by order dated  June 6,  1995  gave  directions  to  the  vice- Chancellor to  appoint the  respondents as  Readers  in the Chemistry Department.  On receipt of the above direction, on June 15, 1995, the Vice-Chancellor by the letter to the Chancellor (Governor) on the same date sought guidance as to how, in the face of the Act, the directions issued by him could be implemented. The Chancellor had referred the matter to the Law Department for opinion   and the   above communication was informed to the appellant on July 8, 1995. The respondent  filed the writ petition on July 17, 1995 for a Mandamus to implement the directions issued by the Chancellor dated June 6, 1995. The respondent filed the counter-affidavit pleading the above facts. The Governor, exercising the powers under Section 6 of the Act, cancelled the appointments made in respect of other persons, who came to be selected and appointed in violation of the Act. It would, appear that those affect persons filed the writ petition in the High Court which are pending disposal. We make it clear that we are not concerned with the above cancellation in this appeal. Therefore, controversy thereof is kept at large.

 

The only  question is whether the Chancellor (Governor) is  right   in           directing the appellant to appoint the respondents  to the  posts  of Readers  in  the  Chemistry Department of  the Allahabad  University. It is already seen that the Act has come into force with effect from December 11, 1993.  Shri Sharan, learned counsel for the respondent, has contended that once the process of selection was started by screening  the candidates eligible for  consideration by the Selection  Committee, the  process was  started prior to the Act  has come into force  and, therefore, all the selections and appointments should  be made  in  accordance with law applicable prior to the Act has come into force. We are unable to agree with the learned counsel. Legislative intentions is clear from  Section 15(1) that the provisions of this Act shall  not apply  to cases in which  selection process has  been initiated  before the commencement of the Act. Initiation of process of selection has been explained in the Explanation that: For the purpose of this sub-section the selection process shall be deemed to have been initiated where, under the relevant service rules, recruitment is to be made on the basis of- (i) written test or interview only, the written test or the interview, as the case may be, has started.  It is not in dispute that in this case, the process of selection to the post of Readers is only by interview. Admittedly, the process of selection is to decide the merit of the candidates by an interview which was started on and from December 12, 1993. Thereby, the process of selection was initiated after the Act has come into force without applying the provisions of sub-section (1) of Section 3 of the Act. Therefore, the process of selection and preparation of merit list was in violation of the provisions of the         Act. The  Governor  when  acted as  Chancellor,  he discharged statutory  duty under  section 68  of  University Act, it was in his ex officio capacity. When he acts under the Act, he exercises his constitutional function under Article 163 with aid and advice of the Council of Ministers. In the later capacity, the order of the Chancellor issued under Section 68 was cancelled, as it was in violation of the Act.

 

In Shankarsan  Dash v.  Union of  India [(1991)  2   SCR 567], on  the basis  of combined  examination by  the  Union Public Service Commission for appointment to civil services, the  appellant name  was  kept  in  the  select  list for appointment as Group `B' Police Service. The vacancies arose for subsequent year, though he was occupying higher rank in the general category, the Government did not appoint him. They implemented the policy, appointing candidates in the lower candidates belonging to reserved categories and the vacancies arose for general candidates were not filled up. He filed the application in the Tribunal for direction to appoint him to the post. The Constitution Bench  had held that  even   for  vacancies  notified  for  appointment and adequate number         of candidates are found fit, the successful candidates do  not acquire  any indefeasible  right  to  be appointed which was dismissed. On appeal, the notification notifying applications for recruitment nearly amounts to a notification to qualified candidates to apply for recruitment. On         their selection they do not     acquire any vested 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, the State has to act fairly.  The decision not to fill up the vacancy has to be taken bona fide for appropriate reasons. The State is to respect the comparative merit           of the candidates reflecting in the      relevant test and no discrimination is permitted in that behalf and normally to be appointed. It does not create any right to an appointment. It was held that the appellant therein had not acquired any right to be appointed against the vacancies arising later on the basis of any rules. Therefore, it was held that he was not entitled to be appointed. This Court also had held that there was no arbitrariness whatsoever on the part of the State in not filling up the vacancies. The process of final selection was held to have been properly taken not to fill up any further allotment of any vacancy arising subsequently.  The ratio therein applies to the facts in this case on all force. In State of Andhra Pradesh v. T. Ramakrishna Rao and Ors. [(1972) 4  SCC 830], the constitution bench had held that an application for appointment had  not acquired any right, by merely applying for the  post either under  the  rule  or otherwise to  be selected  for the  post. Therein, the facts were that Rule 5 of the A.P. Subordinate Service Rules made under Articles 234 and 237 read with proviso to Article 309 of the Constitution was declared ultra vires. After making amendment  to the  rules,   recruitment  was          made.

 

The applications/respondents who made an application earlier have challenged the subsequent recruitment. The Public Service Commission   made  two examinations:(1) to the existing vacancies  under the amended rules  while  setting aside earlier notification; and (2) by selection. This Court had held that single examination for all the vacancies would not violate  Articles 14 and 16 of the Constitution. In that behalf the above ratio came to be laid. In State of Harvana v. Subash  Chander Marwaha  & Ors.  [(1974) 1  SCR 165], the facts were  that under the Punjab Civil Service  (Judicial Branch) Service Rules, recruitment was made for the posts of subordinate judges.  Rule provides 55% of the marks. A list was prepared  of the  candidates upto  45% of  the marks  in aggregate under Rule 10, after the list was published in the Gazette, the  Government was  bound to make the selection of the candidates strictly in  the order in the lists, and intimate the  selection to  the High  Court. When  vacancies were to be filled  up, the  High Court     was to send in the names in accordance with, and in the order in, the list, for appointment. The  appellant selected the first seven who had secured more than 55% marks and above in the first instance. The respondent who secured less than 55% marks and ranked 8, 9 and  13 in  the list    were filed  a writ  petition on the ground that  15 vacancies  are existing and that  they were entitled to  be appointed  from the  list  prepared  by  the Public Service Commission. Though that contention was found favour with  the High  Court, this  Court had  held  that  a mandamus could          be issued only to compel an authority to do legal duty under a statute and the aggrieved party must have a legal right under the statute to enforce its performance. Mere inclusion          in the   list did  not given  any right         to a candidate to  be appointed to a post of a subordinate judge. The mere  existence of         the vacancy  does not  give a  legal right to  a candidate  for appointment. It is open to decide how many  appointment shall  be made.  The mere           fact that a candidate's name  appears in  the list will not entitle to a mandamus that  he be  appointed. The  appeal was accordingly allowed. The  ratio therein  was approved  by this  court in Shankarsan Dash's  case. In Union Territory of Chandigarh v. Dilbagh Singh  & Ors.  [(1993) 1  SCC 154], a bench of three Judges following  Shankarsan Dash's  case had  held that the selectee in  the list  is not  entitled to appointment. Mere inclusion in  the list          will not have any indefeasible right to be  appointed, in the absence of any rule to that effect. In that case the selection was found to be not according to rules. The  Government had cancelled their select list. When it  was            questioned  it    held  by  this  court  that  the cancellation of          the list was bona fide and for valid reason and was         not arbitrary. In Nagar Mahapalika, Kanpur v. Vinod Kumar Srivastava  & Ors.  [AIR 1987  SC 847], the Government issued a  memo superseding  all the circulars and canceling the select  list made for appointment. The High Court issued mandamus that  the previous list will be exhausted and fresh recruitment be    made. This  court by  a bench  of two judges have reversed  the mandamus and held that a list which has a current force  for one year would be valid and all the lists made earlier  were not        intended to  be            revived  under            the circular. Accordingly  the appeal  was allowed and the order was set    aside. The  mandamus issued  by the  High Court was reversed and  the  list     for  that  current  year  1978  was sustained. In  N.T. Bevin Katti v. Karanataka Public Service Commission &  Ors. [AIR   1990 SC  1233], the  Public Service Commission notified  on May  23, 1975  inviting applications from in         service candidates  for recruitment  to 50 posts of Tehsildars. Para  3 of the Notification specified details of the posts  reserved for  candidates belonging  to  Scheduled Castes and  Scheduled  Tribes  and  other  Backward  classes including posts set apart for Ex-Military Personnel. In case of non-availability  of sufficient  number of candidates for reserved categories  vacancies were  to be  filled up as per rules  in   force.  Subsequently   notification        was  issued amending the  pre-existing  rules,  1966.  Rule      11  of  the amended rules  provided that  in the  matter of  reservation already made  in the  case of  post and          services for  which advertisement had been issued prior to the coming into force of the     rules on  July 9,  1975    would be  applicable. The Government had not accepted  the recommendation made by the Public Service            Commission and         directed them  to prepare  a fresh merit  list taking  into consideration all the amended rules giving  reservation to the candidates. Accordingly, it was made  which came  to be  challenged. This Court had held that the Government order shows that the reservation already made  for  any        category  and  the  post  or  service           and advertisement published by issue  of the  Government  order shall be  deemed to have been validly made and would clearly indicate that  the selection  made in  accordance  with          the previous rules            was valid  and the  merit list   prepared  in accordance with the rules was legal and valid one. The State Government wrongly refused to approve the same and curtailed the  scope   of      it.  This  case  is  an  authority  on            the proposition that  recruitment should  be made  in accordance with  the   rules  as         indicated  in    the  amended  rules. Accordingly, the  appeal was  allowed and  the order  of the Government set       aside. In Babita Prasad and Ors. v. State of Bihar and Ors. [1993 Supp. (3) SCC 268], this Court had held that  the  panel  of  indefinite  life,            the  right  of the candidate  including   such  a panel            do  not create  any indefeasible right  when the Government had discontinued the select list  for valid reason. It  was held in paragraph 25 that the  purpose of  the panel prepared in the instant case was only  to finalise  a list  of  eligible  candidates         for appointment. The panel was too long and was intended to last indefinitely barring the future generations for decades from being considered  in the  vacancies arising  much later.  In fact the  future generations  would have been kept out for a very long  period had  the panel  been permitted  to  remain effective till  exhausted. A  panel of            the type prepared in the present  case cannot  be equated  with a  panel which is prepared having co-relation to          the existing  vacancies for anticipated vacancies  arising in  the near future and for a fixed time  and prepared  as  a result of  some  selection process.

 

It is, thus, settled law that the process of selection must be in accordance with the law existing as on the scale of selection. Keeping candidate in the waiting list does not confer any vested right in his favour much less indefeasible right. The appropriate appointing authority is not obliged to fill up the vacancies or to appoint any candidate/candidates waiting in the list to any resultant vacancy, due to the operation of law under the Act.         

 

The vice-Chancellor, therefore, was obliged under the Act and vested with duty and right in taking action to have the vacancies notified  applying Section 3(1) of  the  Act for recruitment in accordance with law.

 

It is then contended that the retrospective operation cannot be given to the vacancies existing prior to the Act has come into force. We are unable to agree with the learned counsel. It is settled legal position that legislature is competent to make law with retrospective effective. The Act was applied to existing vacancies as on the date of the Act came into force and the process of selection was not started as on that date. There is no vested right to a vacancy of a post. Only a person has right to be considered according to rules in force as on the date of consideration. The process of selection started prior to that date requires to be dealt with as          per pre-existing law. The selection after the Act came into force be made by applying Section 3(1). In the face of Section 3 read with Section 15(1) of the Act, any process for selection initiated after the commencement of the Act, be in conformity with the provisions of the Act. Necessarily, the vacancies existing as on that date shall require to be filled up, applying sub-section (1) of Section 3 of the Act and the selection should be made in accordance therewith. Any selection made in a pipe could be roughly calculated from the pipe diameter and the knowledge of maximum steam velocities used to avoid excess issued by the Chancellor to make appointment of the respondents is, though under the provisions of Section 68 of the Universities Act, is in violation of the Act since Section 3(1) has been made applicable with retrospective effect from December 11, 1993. The direction issued by the Chancellor in that behalf is in contravention of Section 3(1) of the Act.

 

It is settled legal position that the mandamus cannot be issued to violate the law or to act in violation of the law. In this case,  the direction  issued by the High Court tentamounts to a direction  to the appellant to appoint the respondents as per the order issued  by the Chancellor, in violation of  the Act. The mandamus was, therefore, clearly illegal. The incumbent Vice-Chancellor cannot be found fault with  the  implementation  of  the  Act as per directions contained in  it and  the comments  and the  strictures made against the appellants by the High Court are unwarranted and uncalled for.

 

The appeals are allowed and the High Court's judgment and orders stands set aside but, in the circumstances, without costs. The writ   petition is,   consequently, dismissed. No costs.