SrinagarWhile government has the power not to appoint a person even if selected but the discretion must not be exercised to swallow the objectives for the purposes of which it is vested, the Jammu and Kashmir High Court said on Thursday as it quashed an order by Home department, terminating the process of recruitment for various non-gazetted and class-IV posts by the Fire & Emergency Services Department in July last year.
A number of aggrieved candidates had filed nine separate petition, challenging the government order (no.381-Home of 2016) dated 5 July 2016, whereby Home Department terminated the recruitment process when almost three-fourths of it was completed.
The Fire and Emergency Services Department had issued three advertisement notices (no.01 of 2013) on 12.03.2013; (no.02 of 2013) on 12.03.2013 and (no.03 of 2013) on 26.06.2013 for filling up of one foreman post, Sub Officer (75 posts), Fireman/Fireman Driver (740 posts), Junior Electrician (04 posts), Painter (04 posts), Vulcanizer (2 posts), Plumber (02 posts), Cook (02 posts) and Barbar (2 posts); various steno-typist and 41 posts of junior assistant (leading Fireman-M); and posts of Sweepers and Safaiwalas.
Subsequently, the Recruitment Board issued a notice notifying the schedule for conducting the first phase of interviews, which included the physical tests and measurements in respect of the eligible candidates who had offered their candidature in response to the advertisement notices.
The Recruitment Board thereafter issued a notice for written test which was published in a local Daily, notifying the list of candidates who had qualified the first phase of the interviews comprising physical tests and measurement etc.
The petitioners submitted they passed the physical tests, duly appeared in the Written Examination and did well, and that, on the basis of their performance in the written test they expected to be shortlisted and called for interview.
However, they said, by issuance of the order by the Home department, the petitioners claim violation of their right to consideration for selection and appointment against the public posts.
The counsel for the petitioners submitted that even if it be taken that certain irregularities had been committed by the Recruitment Board in the selection process, the course available to it was to restart the exercise of selection process from the stage firstthe physical test of the candidates. However, they there is no justification for the government to order issuance of fresh advertisement notice inviting applications for the non-gazetted and Class IV posts of various categories advertised in 2013.
The counsel submitted that such a course would be wholly unfair, unreasonable and a device to make those of the candidates eligible to compete in the selection process who were not eligible to apply in 2013, and that this cannot be allowed under any disguise.
Senior Additional General submitted that the Government has the power not to appoint a person even if he is selected.
However, a single bench of Justice Ali Mohammad Magrey said it was true that the Government has such discretion but it must be borne in mind that every discretionary power in public law has to be on objective principles to be exercised with scrupulous care.
It is settled law that the power in public sphere vested in the authorities for taking administrative decisions is given in order to deal with a case in a just, fair and equitable manner keeping in view the principles of law. The discretion must not be exercised to swallow the objectives for the purposes of which it is vested and to render the basic purpose and object of use of power nugatory, the court said.
Referring to impugned order, the court observed that it reveals that the Government upon examination of various aspects of the recruitment proceedings had noticed the discrepancies on the basis of which it came to the conclusion that the selection process was not transparent and flawless.
Obviously, the court said, the discrepancies relate to the period and processes undertaken by the Recruitment Board after the last date prescribed for receipt of the application forms.
There is nothing contained in these discrepancies as could be said to have rendered the advertisement notices flawed. It is also not anybodys case that the advertisement notices contained any term or condition contrary to Rules or not envisaged by the Recruitment Rules governing the service. It is also not a case where the Government has decided not to fill up the vacancies which had been notified by these advertisement notices, the court said.
The court said there cannot be anything just, fair and equitable in decision like the Home departments order which has under the garb of there being discrepancies in the selection process undertaken, sought to terminate even the advertisement notices as well.
Yes, if the Government intended not to fill up the posts, nothing would prevent it from cancelling the advertisement notices in question. But that is not the case here; the Government specifically provides that fresh advertisement notice be issued within one month and that vacancies as would have become available till the date of such fresh advertisement be included therein, the court said, adding, In the facts and circumstances, the Court is not in a position to wholly reject the contention put forth by the counsel for the petitioners that the whole exercise has been undertaken to make those persons eligible to compete against the posts which were available in 2013, who were not eligible as on the cut-off date viz. 18.04.2013, the court said.
Eventually, the court quashed the Home department order to the extent it seeks to terminate the advertisement notices relatable to the petitioners in nine petitions and to the extent it orders that the Director General, Fire & Emergency Services, J&K will issue fresh advertisement notices inviting applications for the non-gazetted and Class IV posts of various categories advertised by the Department in 2013.
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