By M Ahmad
Srinagar- While an employer has a right to abandon the selection process at any time, the same cannot be done arbitrarily or at its sweet will, the High Court of J&K and Ladakh said on Monday.
“The fundamental questions that arise for consideration in the instant petition is 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,” said a bench of Justice Javed Iqbal Wani while allowing a petition filed by candidate who had challenged his non-selection as driver in J&K State Sports Council in 2014 despite being meritorious. One of the two candidates selected then, the petitioner—Ravider Singh— through official documents revealed, was also ineligible being overage on the cut-off date provided in the advertisement notice.
“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, but the question would be, can it be done 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, the court said, 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,” the court said, adding, “If they qualify the written test, they may have again to appear for interview and medical examination and travel again and those, who are successful and are declared to have qualified, have a reasonable expectation that they will be appointed and no doubt…this is not a vested right, 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.”
The State, the court said, can not 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.”
Subsequently, the court directed the State Sports Council to offer appointment to the petitioner against the post of Driver and admit him to all the consequential benefits.
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