It’s Not Incumbent Upon Employer To Fill All Posts But Discretion Not To Appoint Must Be Exercised Judiciously: Patna High Court
The Patna High Court allowed the Appeal preferred by the Bihar State and the Bihar Public Service Commission (BPSC), challenging the Judgment of the Single Judge.
The Patna High Court reiterated that it is not incumbent upon the employer to fill all posts but discretion not to appoint, must be exercised judiciously.
The Court reiterated thus in an Appeal preferred by the Bihar State and the Bihar Public Service Commission (BPSC), challenging the Judgment of the Single Judge, which directed the State and Director of Secondary Education to identify the number of vacancies that had arisen due to non-appointment of the candidates recommended by the BPSC as Primary Teachers.
A Division Bench comprising Acting Chief Justice (ACJ) Ashutosh Kumar and Justice Partha Sarthy observed, “It is not incumbent upon the employer to fill all posts but discretion not to appoint, must be exercised judiciously. Courts normally would not interfere with the discretion not to fill up posts but exercise of such discretion should not be arbitrary, capricious or whimsical.”
Advocate General P.K. Shahi and Advocate Sanjay Pandey represented the Appellants while Senior Advocate Y.V. Giri represented the Respondents. Senior Advocate Mrigank Mauli represented the Intervenor.
Facts of the Case
The Respondents/Applicants had approached the High Court for issuance of a mandamus to BPSC to publish a supplementary/revised merit list for teachers in Primary Schools for Class I-V in an advertisement, against the vacancies that could not be filled due to ineligibility/disqualification of provisionally successful candidates for non-passing of the CTET and D.El.Ed. Examinations. It was further sought to publish the result of the Respondents in the fresh supplementary list and call them for document verification and allot respective schools; to lower down the cut-off date of birth in all the categories in the supplementary/revised merit list for teachers in Primary Schools for Class-I to V and for a direction to the Appellants not to merge or include the left-over vacancy of the advertisement with the future vacancy of Teachers’ Recruitment Examination. The BPSC had published an advertisement inviting online applications for 1,70,461 posts for appointment of Primary School Teachers for Class-I to V; Secondary School Teachers for Class-IX and X and Senior Secondary School Teachers for Class XI and XII. For the posts of Primary School Teachers for Class-I to V for general subjects, the number of posts advertised was 67,066 with which the Respondents were concerned.
The advertisement provided the eligibility criteria that in case of candidates obtaining same marks, age would be given precedence and in case, age will be the same, the alphabetical order would be given the priority. The Respondents claimed to possess all the requisite qualifications, but their names were not included in the list of successful candidates, numbering 62,653. The claim of the Respondents before the Single Judge was that they had secured qualifying marks as published by the BPSC for Primary School Teachers, but their names were not included in the merit list because of the cut-off date of birth fixed by the Commission, in which the Respondents were lesser in age than the selected candidates. The Single Bench issued necessary directions and therefore, the Appellants challenged its decision.
Reasoning
The High Court in the above regard, said, “On this Court seeking a specific query from the Commission about the writ petitioners/respondents meeting the qualifying cut-off marks and qualifying cut-off age, it was categorically stated that amongst the writ-petitioners, nobody was in the category of candidates who qualify to be appointed on the basis of cut-off marks and cut-off date of birth.”
The Court further noted that no Respondents/Applicants met the cut-off threshold of date of birth, though they had obtained marks equal to the selected candidates and that the vacancies were carried forward and two consecutive selection process got activated.
The Court remarked that there is no legal right to appointment but only of being considered, which is subject to bona fide action on the part of the State.
“An aspirant has no legal right and the superior Court, in exercise of its judicial power of review, would not ordinarily direct issuance of any writ in the absence of any pleading and proof of mala fide or arbitrariness on the part of the employer”, it also reiterated.
The Court, therefore, concluded that it is not a fit case where the impugned Judgment could be sustained.
Accordingly, the High Court allowed the Appeal and set aside the Single Judge’s Judgment.
Cause Title- The State of Bihar & Ors. v. Dhirendra Kumar & Ors. (Neutral Citation: Letters Patent Appeal No.1030 of 2024)
Appearance:
Appellants: Advocate General P.K. Shahi, GA Ajay, AC Saurav Kumar, Advocates Sanjay Pandey, and Nishant Kumar Jha.
Respondents: Senior Advocate Y.V. Giri, Advocates Pranav Kumar, and Shristi Singh.
