Sri Harish Kumar H P vs The State Of Karnataka on 23 March, 2026

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    Karnataka High Court

    Sri Harish Kumar H P vs The State Of Karnataka on 23 March, 2026

                                           -1-
                                                      WA No. 814 of 2025
    
    
    
                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
    
                        DATED THIS THE 23rd DAY OF MARCH, 2026
    
                                        PRESENT
                           THE HON'BLE MR. JUSTICE D K SINGH
                                                                           ®
                                           AND
                          THE HON'BLE MR. JUSTICE S RACHAIAH
                          WRIT APPEAL NO. 814 OF 2025 (S-RES)
                BETWEEN:
    
                1.    SRI HARISH KUMAR H P
                      S/O PUTTEGOWDA,
                      AGED ABOUT 40 YEARS,
                      R/AT HIRINDYAPPANAHALLI,
                      KODIHALLI HOBLI,
                      KANAKAPURA TALUK,
                      RAMANAGARA DISTRICT-562119
    
                2.    SRI VISHWANATH
                      S/O VRUSHABENDRAYYA SASIMATH,
                      AGED ABOUT 37 YEARS,
                      R/AT GUDDNEPPANAMATH POST,
                      KUKANOOR YELABURGA TALUK,
                      KOPPALA DISTRICT-583232
    Digitally
    signed by
    VASANTHA    3.    SRI HAMPANNA KOLAKAR
    KUMARY B          S/O SIDDAPPA,
    K
    Location:         AGED ABOUT 37 YEARS,
    HIGH              R/AT YARANALA POST,
    COURT OF          BASAVANA BAGEWADI TALUK,
    KARNATAKA
                      VIJAYAPURA DISTRICT-586122
                                                         ...APPELLANTS
                (BY SRI. LAKSHMI NARAYANA, SENIOR ADVOCATE FOR
                    SMT. SHILPA RANI., ADVOCATE)
    
                AND:
    
                1.    THE STATE OF KARNATAKA
                      DEPARTMENT OF URBAN DEVELOPMENT,
                      REP BY ITS CHIEF SECRETARY,
                                -2-
                                           WA No. 814 of 2025
    
    
    
         VIKASA SOUDHA,
         BENGALURU-560001
    
    2.   THE DIRECTOR
         DEPARTMENT OF MUNICIPAL ADMINISTRATION,
         9TH FLOOR,
         VISHVESHWARAIAH TOWER,
         DR AMBEDKAR ROAD,
         BENGALURU-560001
    
    3.   KARNATAKA PUBLIC SERVICE COMMISSION
         REP BY ITS SECRETARY,
         UDYOGA SOUDHA,
         BENGALURU-560001
    
                                                ...RESPONDENTS
    (BY SRI. RUEBEN JACOB, AAG ALONG WITH
        SRI. MOHAMMAD JAFFAR SHAH, AGA FOR R1 & R2;
        SMT. M.R.SINCHANA, ADVOCATE FOR R3)
    
          THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
    KARNATAKA   HIGH   COURT    ACT   PRAYING   TO    CALL   FOR
    RECORDS IN WP No-7190/2022 (S-RES) SET ASIDE THE
    ORDER DATED 24.02.2025 THEREIN PASSED BY THE LEARNED
    SINGLE JUDGE AND ALLOW THE WP AS PRAYED FOR TO MEET
    THE ENDS OF JUSTICE.
    
    
          THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
    JUDGMENT     ON     30.01.2026,     COMING        ON     FOR
    PRONOUNCEMENT      THIS   DAY,    HON'BLE   MR.    JUSTICE
    D K SINGH., PRONOUNCED THE FOLLOWING:
    
    
    CORAM:   HON'BLE MR. JUSTICE D K SINGH
             and
             HON'BLE MR. JUSTICE S RACHAIAH
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                                                   WA No. 814 of 2025
    
    
    
                         CAV JUDGMENT
    

    (PER: HON’BLE MR. JUSTICE D K SINGH)

    The present intra Court Appeal has been filed impugning

    SPONSORED

    the judgment and order dated 24.02.2025 passed by the writ

    Court in W.P.No.7190/2022.

    2. The parties are referred to as per their ranking

    before the writ Court, for the sake of convenience.

    3. The petitioners have filed the writ petition seeking a

    writ of certiorari to quash the endorsement dated 04.11.2021

    issued by the Director, Department of Municipal Administration,

    Government of Karnataka, whereby the petitioners request to

    issue appointment order against the post of Work Inspector in

    pursuance to the selection held by the Karnataka Public Service

    Commission (hereinafter referred to as ‘the KPSC’) has been

    rejected and further prayer for writ of mandamus commanding

    the respondents to issue letter of appointment to the

    petitioners who have secured more than 25% marks and are

    fully eligible for appointment in terms of the final selection list

    dated 16.09.2017.

    4. The learned Single Judge however has taken the

    view that as the State Government had taken a decision vide
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    WA No. 814 of 2025

    Government order dated 05.01.2021 to abolish the cadre of

    Work Inspector, the petitioners would not be entitled for

    appointment even if they have secured more than 25% marks

    in the examination. Mere selection and names in the select list

    would not entitle them to seek appointment when the

    Government has taken a decision to abolish the post against

    which they got selected.

    5. On requisition having been sent by the Director,

    Department of Municipal Administration, the respondent No.2

    for making selection against 211 posts of the Work Inspector in

    the Department of Urban Development to be merged with local

    bodies, the KPSC, the respondent No.3, issued a notification

    dated 06.04.2016 and called for applications from the eligible

    candidates to fill up 211 posts of the Work Inspector. The KPSC

    conducted the competitive examination on 13.11.2016 and

    directed the candidates to appear for verification of their

    testimonials on 21.06.2017. After verification of the

    testimonials of the candidates, the KPSC notified provisional

    select list and issued final select list on 16.09.2017. The

    petitioners’ names were found in the final select list at Sl.Nos.4,

    6 and 2 respectively.

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    WA No. 814 of 2025

    6. After publication of the select list, the appointment

    orders were not issued to the petitioners. It appears that the

    Secretary, Urban Development Department on 04.10.2017

    communicated that the Public Works Department had abolished

    the cadre of Work Inspector in 2011 and the same had been

    removed from the Cadre and Recruitment rules of the Public

    Works Department. The draft Karnataka Municipal

    Corporation (Common Recruitment of Officers and Employees)

    (Amendment) Rules, 2018, proposed for 10 corporations were

    pending for finalisation and consequently, cancellation of

    selection for the post of Work Inspector in question was sought

    for.

    7. On this communication issued by the Secretary of

    Urban Development Department seeking cancellation of the

    selection for the 211 posts of the Work Inspector, the

    Government stated that as the KPSC had already published the

    final select list therefore, only those candidates who had

    secured 25% marks and above in the selection process would

    be considered for appointment, and in case of abolition of the

    cadre of Work Inspector, the eligible candidates appointed

    would be merged into an equivalent cadre.
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    WA No. 814 of 2025

    8. In compliance of the aforesaid directions of the

    State Government, the Director issued an instruction letter to

    the appellants on 15.02.2019 for verification of original

    documents. The petitioners submitted all their original records

    pertaining to their educational qualifications before respondent

    No.2 and all these original educational mark sheets and

    certificates have since been in the custody of respondent No.2

    i.e., the Director, Departmental Municipal Corporation.

    9. The candidates who had secured less than 25% in

    the selection process approached this Court in

    W.P.No.3077/2019 and other connected writ petitions seeking

    the quashing of the selection process and other such reliefs.

    However, the said writ petitions were dismissed by the learned

    Single Judge vide judgment and order dated 19.08.2021.

    10. In the said W.P.No.3077/2019, the Director,

    Department of Municipal Administration, respondent No. 2 had

    filed an affidavit inter alia stating that since the KPSC had

    already published the final select list, the candidates who had

    secured more than 25% and above marks in the selection

    process would be considered for appointment, and it was

    further stated that in the event of abolition of cadre of Work
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    WA No. 814 of 2025

    Inspector, the eligible candidates appointed could be merged

    into an equivalent cadre. This was also brought to the notice of

    the Government. Paragraphs 6 and 9 of the affidavit are

    extracted hereunder:

    “6. Further, to this in the letter dated
    05.12.2017 addressed to the Secretary, Urban
    Development Department, it has been submitted
    that, since Karnataka Public Service Commission had
    already published final selection list, only those
    candidates who have secure 25% and above may be
    considered for appointment and in case of abolition
    of cadre of Work Inspector, the eligible candidates
    appointed may be merged into equivalent cadre.”

    9. I further submit that in accordance with
    the opinion obtained, Government vide letter dated
    06.02.2019 has informed Director of Municipal
    Admission to consider those candidates in the
    selection list who have secured above 25% for
    appointment as Work Inspectors. ”

    11. The Government had thereafter took a decision vide

    Government Order dated 05.01.2021 with the concurrence of

    the Finance Department, to abolish various posts in the

    Department of Municipal Administration, including the post of

    Work Inspector except Bruhath Bengaluru Mahanagara
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    WA No. 814 of 2025

    Palike(BBMP). The cadre of Work Inspector consists of 380

    posts, which the Government decided to abolish, in all 1,694

    various posts were decided to be abolished by the said

    Government Order dated 05.01.2021.

    12. After the W.P.No.3077/2019 was disposed of vide

    judgment and order dated 19.08.2021, the petitioners

    submitted a representation to the Director of Municipal

    Administration to issue appointment orders, as per their own

    affidavit filed in the W.P.No.3077/2019, stating that the

    petitioners had secured more than 25% marks in the selection

    process. However, the State Government, vide impugned

    endorsement dated 04.11.2011 denied to issue the

    appointment orders on the ground that since the post of Work

    Inspector stood abolished by the Government, Vide

    Government order dated 05.01.2021, the petitioners were not

    entitled to appointment against the post of Work Inspector in

    pursuance of the selection made by the Public Service

    Commission.

    13. The learned Senior Counsel for the appellants would

    submit that the post of Work Inspector and various other posts

    were created under the Karnataka Municipal Corporation
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    WA No. 814 of 2025

    (Common Recruitment of Officers and Employees) Rules, 2011

    (hereinafter referred to as ‘the 2011 Rules’) and these rules

    have been framed in exercise of powers conferred by Section

    421 of the Karnataka Municipal Corporation Act, 1976

    (hereinafter referred to as, ‘the KMC Act‘) by the State

    Government. It is further submitted that the cadre of Work

    Inspector consists of 380 posts and without an amendment to

    the statutory rules, the cadre of Work Inspector cannot be

    abolished by merely executive instructions, i.e., the order dated

    05.01.2021. It is further submitted that the Government order

    dated 05.01.2021 itself contained a direction to amend the

    Rules of 2011, however, till date, the Rules have not amended.

    14. Rule 5 of the 2011 Rules provides for method of

    recruitment and minimum qualification for the post of Work

    Inspector, which read as under:

    “5. Method of recruitment and minimum
    qualification:- In respect of posts specified in
    column(2) of Schedulre-III, the pay scale, method of
    recruitment and minimum qualifications shall be as
    mentioned in the corresponding entries in
    columns(3), (4) and (5) thereof. Details of
    deputational posts shall be as specified in Schedule
    IIIA.”

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    WA No. 814 of 2025

    Sl.   Category of               Pay          Method of            Maximum
    No.      posts                 Scale        Recruitment         Qualification
                                                                   For direct
                                                                   recruitment (1)
    28.        Work            7215-            By direct          must have
             Inspector         13350            recruitment        passed SSLC or
                                                                   equivalent
                                                                   examination
    
    
    

    15. The recruitment process was completed much prior

    to the Government Order dated 05.01.2021. The Government

    had itself taken a conscious decision to appoint candidates from

    the select list who had secured more than 25% marks in the

    selection process. It is, therefore, submitted that the

    Government cannot now resile from its own stand taken in the

    affidavit filed in the W.P.No.3077/2019. The petitioners have

    secured more than 25% marks and their documents were

    verified and the originals are retained with the Director of

    Municipal Administration. Consequently, the petitioners have

    become overaged. There is a legitimate expectation of

    petitioners being appointed in pursuance to the selection held

    in which they were successful. It is further submitted that there

    are only 4 candidates who have secured more than 25% marks

    in the selection process and in view of the Government’s own

    undertaking on an affidavit before the Writ Court in

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    WA No. 814 of 2025

    W.P.No.3077/2019, the petitioners are entitled to be appointed

    to the post of Work Inspector.

    16. It is further submitted that though mere inclusion in

    the select list does not confer an indefeasible right to

    appointment, but a selection process can only be cancelled for

    valid, reasonable and justifiable reasons. The selection process

    once held cannot be cancelled arbitrarily at the whims of the

    Government. The selected candidates have a legitimate

    expectation of appointment and only in the event of the

    selection process having been found to be not fair or its

    integrity was doubted, then the selection process would be

    cancelled. Here, the Government consciously decided to

    appoint the candidates who had secured more than 25% marks

    in the selection process and whose names were in the select

    list. Despite this decision and undertaking, the Government has

    now changed its stand claiming that since the Government has

    abolished the cadre vide Government order dated 05.01.2021,

    the petitioners are not entitled to appointment in pursuance to

    the selection held for the post of Work Inspector.

    17. The abolition of a cadre can only be effected by

    amending the relevant service rules. The cadre of Work

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    WA No. 814 of 2025

    Inspector was created under the 2011 Rules. Till date, there

    has been no amendment to the aforesaid 2011 Rules to abolish

    the cadre. A policy decision can only take effect once the

    associated rules have been amended. If the associated rules

    have not been amended, the policy decision cannot be given

    effect to. The only ground taken by the State Government for

    not appointing the petitioners is that the Government decided

    to abolish the cadre of Work Inspector. Therefore, though the

    petitioners were selected and they had secured more than 25%

    marks, they have not been entitled to appointment. This stand

    of the State Government is wholly arbitrary, illegal and in

    violation of Articles 14 and 16 of the Constitution of India.

    18. It is further submitted that the learned Single Judge

    has missed the point that unless the policy decision was

    implemented, the statutory amendment in the rules could not

    have been given effect to. The learned single judge has merely

    focused on the point that the mere selection of the petitioners,

    even if they had score more than 25% marks would not confer

    a right to appointment.

    19. On the other hand, Mr. Rueben Jacob, learned

    Additional Advocate General assisted by Mr. Mohammad Jaffar

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    WA No. 814 of 2025

    Shah, learned Additional Government Advocate has supported

    the judgment and has submitted that it is well settled that

    mere inclusion of names in a select list does not confer an

    indefeasible right in favour of the selected candidates to be

    appointed. Even after selection, it is the discretion of the

    Executive/Competent Authority to offer appointment. If the

    Government had decided to abolish the post of Work Inspector,

    even if the amendment has not been given effect to in the

    statutory rules of 2011, the petitioners would not have the right

    to seek a writ of mandamus from this Court for appointment

    against the post of Work Inspector. He, therefore, submits that

    the writ appeal does not have any merit and the learned Single

    Judge has rightly held that the petitioners would not have a

    fundamental or legal right to seek a writ of mandamus from

    this Court for issuing them appointment orders against the post

    of Work Inspector when such post has been abolished, even

    though a statutory amendment has not been brought in. It is

    further submitted that under Article 162 of the Constitution of

    India, the Government has the executive power to take a policy

    decision on all the matters where it has the power to legislate.

    20. The following questions arise for consideration:

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    WA No. 814 of 2025

    i. Whether a cadre created under the

    statutory rules can be abolished by an executive

    order?

    ii. Whether a candidate duly selected for a

    post would have the legitimate expectation of

    appointment on the said post, unless there are valid

    and justifiable reasons for not effecting the

    appointment?

    iii. Whether the Government is empowered

    to withhold the appointment of a duly selected

    candidate, when there are no allegations in respect

    of the selection process or the eligibility of the

    candidate?

    21. In Sant Ram Sharma Vs. State Of Rajasthan

    And Others (1967 AIR SC 1910), it has been held that a

    cadre created under statutory service rules cannot be abolished

    by an executive order without amending the statutory service

    rules or enacting a new law. The administrative orders cannot

    amend or supersede the statutory rules. Abolition of a cadre

    that is created by the statutory rules would amount to altering

    the rules unless the rules themselves are amended or a statute

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    WA No. 814 of 2025

    is enacted to authorise the change. The relevant paragraph is

    extracted hereunder:

    “7. We proceed to consider the next contention
    of Mr N.C Chatterjee that in the absence of any
    statutory rules governing promotions to selection
    grade posts the Government cannot issue
    administrative instructions and such administrative
    instructions cannot impose any restrictions not found
    in the Rules already framed. We are unable to accept
    this argument as correct. It is true that there is no
    specific provision in the Rules laying down the
    principle of promotion of junior or senior grade
    officers to selection grade posts. But that does not
    mean that till statutory rules are framed in this
    behalf the Government cannot issue administrative
    instructions regarding the principle to be followed in
    promotions of the officers concerned to selection
    grade posts. It is true that Government cannot
    amend or supersede statutory rules by
    administrative instructions, but if the rules are silent
    on any particular point Government can fill up the
    gaps and supplement the rules and issue instructions
    not inconsistent with the rules already framed.”

    22. The Madras High Court in the case of ARASU

    RUBBER CORPORATION LTD. Vs. S.SUNDAR

    (WA.1124/2021) held that it is well settled that the executive

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    WA No. 814 of 2025

    directions can supplement but not override the statutory rules

    framed under Article 309 of the Constitution of India. The

    relevant paragraph is extracted hereunder:

    “14. It is also to be noted that any relaxation of the
    qualification in exercise of the powers under Article
    162
    of the Constitution of India contrary to the
    regulation framed under Article 309 of the
    Constitution of India, is clearly bad. Article 162
    cannot be understood to give the executive power to
    override statutory rules framed under Article 309 of
    the Constitution. In this regard, it may be relevant to
    refer to the following judgments:

    (i) Sk. Nausad Rahaman v. Union of India, [(2022)
    12 SCC 1], wherein, it was held by the Hon’ble
    Supreme Court as follows:

    “29. Fifth, where there is a conflict between
    executive instructions and Rules framed under Article
    309
    , the rules must prevail. In the event of a conflict
    between the Rules framed under Article 309 and a
    law made by the appropriate legislature, the law
    prevails. Where the rules are skeletal or in a
    situation when there is a gap in the rules, executive
    instructions can supplement what is stated in the
    rules. [Union of India v. Somasundaram Viswanath,
    (1989) 1 SCC 175, para 6 : 1989 SCC (L&S) 150]
    ……..

    33. There is a fundamental fallacy in the submission
    which has been urged on behalf of the appellants.
    Administrative instructions, it is well-settled, can
    supplement Rules which are framed under the
    proviso to Article 309 of the Constitution in a manner
    which does not lead to any inconsistencies. Executive
    instructions may fill up the gaps in the rules. But
    supplementing the exercise of the rule- making
    power with the aid of administrative or executive
    instructions is distinct from taking the aid of
    administrative instructions contrary to the express
    provision or the necessary intendment of the Rules
    which have been framed under Article 309. The 2016

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    WA No. 814 of 2025

    RR have been framed under the proviso to Article

    309. Rule 5 of the 2016 RR contains a specific
    prescription that each CCA shall have its own
    separate cadre. The absence of a provision for filling
    up a post in the Commissionerate by absorption of
    persons belonging to the cadre of another
    Commissionerate clearly indicates that the cadre is
    treated as a posting unit and there is no occasion to
    absorb a person from outside the cadre who holds a
    similar or comparable post.

    35. Rule 5 of the 2016 RR postulates that each CCA
    has a separate cadre and does not contain a
    provision for bringing in, by way of absorption,
    persons from outside the cadre. Inducting persons
    from outside the cadre by absorption requires a
    specific provision in the subordinate legislation for
    the simple reason that the concept of a cadre would
    otherwise militate against bringing in those outside
    22/31 23 the cadre. That is the reason why Rule 4(ii)
    of the erstwhile 2002 RR contained a specific
    provision to this effect. That provision has however
    not been included when the 2016 RR were framed. If
    the authority entrusted with the power of framing
    Rules under Article 309 of the Constitution did so on
    the ground that the provision was subject to misuse
    and was contrary to the interests of the
    administration, no employee can assert a vested
    right to claim an ICT.” (emphasis supplied)

    (ii) K. Kuppusamy v. State of T.N., [(1998) 8 SCC
    469], in which, it was observed by the Hon’ble
    Supreme Court as under :

    “3. The short point on which these appeals must
    succeed is that the Tribunal fell into an error in
    taking the view that since the Government had
    indicated its intention to amend the relevant rules,
    its action in proceeding on the assumption of such
    amendment could not be said to be irrational or
    arbitrary and, therefore, the consequential orders
    passed have to be upheld. We are afraid this line of
    approach cannot be countenanced. The relevant
    rules, it is admitted, were framed under the proviso
    to Article 309 of the Constitution. They are statutory
    rules. Statutory rules cannot be overridden by

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    WA No. 814 of 2025

    executive orders or executive practice.” (emphasis
    supplied)

    (iii)In Union of India v. Ashok Kumar Aggarwal,
    [(2013) 16 SCC 147 ], it was observed by the
    Hon’ble Supreme Court as follows:

    “59. The law laid down above has consistently
    been followed and it is a settled proposition of law
    that an authority cannot issue orders/office
    memorandum/executive instructions in contravention
    of the statutory rules. However, instructions can be
    issued only to supplement the statutory rules but not
    to supplant it. Such instructions should be
    subservient to the statutory provisions. (Vide Union
    of India v. Majji Jangamayya
    [(1977) 1 SCC 606 :
    1977 23/31 24 SCC (L&S) 191] , P.D. Aggarwal v.
    State of U.P. [(1987) 3 SCC 622 : 1987 SCC (L&S)
    310 : (1987) 4 ATC 272] , Paluru Ramkrishnaiah v.
    Union of India
    [(1989) 2 SCC 541 : 1989 SCC (L&S)
    375 : (1989) 10 ATC 378 : AIR 1990 SC 166] , C.
    Rangaswamaiah v. Karnataka Lokayukta
    [(1998) 6
    SCC 66 : 1998 SCC (L&S) 1448] and Joint Action
    Committee of Air Line Pilots’ Assn. of India v. DG of
    Civil Aviation [(2011) 5 SCC 435 : AIR 2011 SC
    2220] .)

    60. Similarly, a Constitution Bench of this Court, in
    Naga People’s Movement of Human Rights v. Union
    of India
    [(1998) 2 SCC 109 : 1998 SCC (Cri) 514 :
    AIR 1998 SC 431] , held that the executive
    instructions have binding force provided the same
    have been issued to fill up the gap between the
    statutory provisions and are not inconsistent with the
    said provisions.

    61. In Nagaraj Shivarao Karjagi v. Syndicate Bank
    [(1991) 3 SCC 219 : 1991 SCC (L&S) 965 : (1992)
    19 ATC 639 : AIR 1991 SC 1507] this Court has
    explained the scope of circulars issued by the
    Ministry observing that it is binding on the officers of
    the department, particularly the recommendations
    made by CVC.” (emphasis supplied)

    (iv) In a recent decision in ESI Corpn. v. Union of
    India
    , [(2022) 11 SCC 392], in which, it was held by
    the Hon’ble Supreme Court as follows :

    “17. In P.D. Aggarwal v. State of U.P. [P.D. Aggarwal
    v. State of U.P., (1987) 3 SCC 622 : 1987 SCC (L&S)

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    WA No. 814 of 2025

    310] a two-Judge Bench of this Court declined to
    grant primacy to an office memorandum issued by
    the Government of Uttar Pradesh which purportedly
    amended the method of recruitment of Assistant Civil
    Engineers in the U.P. Public Service Commission
    without amending the relevant regulations. The
    Court held : (SCC p. 640, para 20)
    “20. The office memorandum dated 7-12-1961 which
    purports to amend the United Provinces Service of
    Engineers (Buildings and Roads Branch) Class II
    Rules, 1936 in our opinion cannot override, amend or
    supersede 24/31 25 statutory rules. This
    memorandum is nothing but an administrative order
    or instruction and as such it cannot amend or
    supersede the statutory rules by adding something
    therein as has been observed by this Court inSant
    Ram Sharma v. State of Rajasthan [Sant Ram
    Sharma v. State of Rajasthan, AIR 1967 SC 1910 :

    (1968) 1 SCR 111] . Moreover the benefits that have
    been conferred on the temporary Assistant Engineers
    who have become members of the service after
    being selected by the Public Service Commission in
    accordance with the service rules are entitled to have
    their seniority reckoned in accordance with the
    provisions of Rule 23 as it was then, from the date of
    their becoming member of the service, and this
    cannot be taken away by giving retrospective effect
    to the Rules of 1969 and 1971 as it is arbitrary,
    irrational and not reasonable.”

    23. The High Court of Himachal Pradesh, in the case of

    Priyanka Gautam & Others Vs. State Of Himachal Pradesh

    & Others(2014 LABIC 3374), has held that where a cadre is

    created by statutory rules, some abolition or major

    restructuring effects a change to those rules. Such change

    requires amendment to the rules under Article 309 or a

    legislative enactment. This view has been consistently

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    WA No. 814 of 2025

    supported that the cadre creation/abolition is a matter

    governed by the statutory rules and the executive action cannot

    unilaterally alter those rules. Paragraph 13 of the said judgment

    is extracted hereunder:

    “13. It is settled proposition of law that executive
    instructions cannot overrule or override the statutory
    Rules. Therefore, in case there is a conflict between
    the executive instructions and the rules made under
    Article 309, the rules made under Article 309 will
    prevail and in case there is conflict between the rules
    framed under Article 309 and the law made by the
    legislature will prevail. It is further trite that
    administrative instructions or orders can only be
    issued in matters of which the Rules made under
    Article 309 are silent, therefore, administrative
    instructions can only supplant the Rules but cannot
    supplement the same. Even a policy decision taken
    by the Government cannot have the force of rule
    made under Article 309 of the Constitution of India.
    Needless to state that Article 162 whereby the
    Government is competent to issue administrative
    instructions/orders and Article 309 operate in
    different area. In exercising the powers under Article
    162
    , the Government cannot ignore the Rules framed
    under Article 309. Thus, any appointment or
    regularisation of an appointment made in
    contravention of the rules made under Article 309
    shall be void. It is equally settled law that the rules
    framed under Article 309 cannot be amended or
    modified by an administrative order or instruction
    even by way of adding to the provisions of the
    statutory rule, unless there is a gap in the rule which
    required to be fill up. Therefore, what essentially
    follows is that the Government cannot amend or
    supersede the statutory Rules by administrative
    instructions and it is only when the Rules are silent
    on any particular point can the Government fill up
    the gaps and supplant the Rules or the law by
    issuing instructions that too not inconsistent with the
    Rules. Thus, an administrative instruction cannot

    – 21 –

    WA No. 814 of 2025

    abridge or run counter to statutory provision or
    Rule.”

    24. The Bombay High Court, in the case of Ganpat R.

    Palni Vs. State of Goa, 2009 SC OnLine 1949, has held

    that the creation and abolition of post is the Government’s

    prerogative when the same is done in good faith. However, the

    policy decision to abolish the posts which have been created

    under the statutory rules can be done only by amending or

    altering the statutory rules and not otherwise. The creation or

    abolition of the posts though is an executive prerogative, but

    must align with the statutory framework. The relevant

    paragraph is extracted hereunder:

    “10. It is well settled that creation or abolition of
    posts or for that matter surrender of posts is
    entirely a discretion of the Government as long as it
    is done in good faith and the Courts cannot interfere
    with the same. In State of Haryana v. Shri Des Raj
    Sangar
    ((1976) 2 SCC 844) the Apex Court held
    that whether the post should be retained or
    abolished is essentially a matter for the Government
    to decide. As long as such decision of the
    Government is taken in good faith, the same cannot
    be set aside by the Court. It is not open to the Court
    to go behind the wisdom of the decision and
    substitute its own opinion for that of the

    – 22 –

    WA No. 814 of 2025

    Government on the point as to whether a post
    should or should not be abolished. The decision to
    abolish the post should, however, be taken in good
    faith and be not used as a cloak or pretence to
    terminate the services of a person holding that post.
    In case it is found on consideration of the facts of a
    case that the abolition of the post was only a device
    to terminate the services of an employee, the
    abolition of the post would suffer from a serious
    infirmity and would be liable to be set aside. The
    termination of a post in good faith and the
    consequent termination of the services of the
    incumbent of that post would not attract Article 311.
    In that case the post was abolished as an economy
    measure to meet financial stringency for
    administrative reasons and the Apex Court held that
    the Court cannot review such reasons and the fact
    that the post to be abolished was held by a person
    who is confirmed in that post and the post which
    was not abolished was held by a person who was
    not permanent would not affect the legality of the
    decision to abolish the former post as long as the
    decision to abolish the post is taken in good faith. In
    Divisional Manager, Aravali Golf Club v. Chander
    Hass
    ((2008) 1 SCC 683) the Apex Court has held
    that the creation and sanction of posts is the
    prerogative of the executive and legislative
    authorities and not of the Courts.
    Likewise, in State
    of Haryana v. Navneet Verma
    ((2008) 2 SCC 65),

    – 23 –

    WA No. 814 of 2025

    the Apex Court has reiterated that the power to
    create or abolish a post rests with the Government;
    whether a particular post is necessary is a matter
    depending upon the exigencies of the situation and
    administrative necessity; creation, continuance and
    abolition of posts are all decided by the Government
    in the interest of administration and general public;
    the Court is least competent in the face of scanty
    material to decide whether the Government acted
    honestly in creating a post or refusing to create a
    post or its decision suffers from mala fides, legal or
    factual; as long as the decision to abolish the post is
    taken in good faith in the absence of any material,
    interference by the Court is not warranted.”

    25. The High Court of Orissa, in the case of Nilamani

    Das v. State of Orissa (1982 SCC OnLine Ori 130), has

    held that in absence of cadre or rules allowing executive

    regulations would not empower the executive to abolish a

    cadre/post created under the statutory rules. The relevant

    paragraph is extracted hereunder:

    8. For forming a cadre, notification forming
    the said cadre is to be published in the gazette.

    Cadres are also formed by rules under Article 309 of
    the Constitution of India or by express order by
    declaring such cadre exercising powers under Article
    162
    of the Constitution. There has been no
    declaration, no publication, no rules and no

    – 24 –

    WA No. 814 of 2025

    provision for recruitment or transfer or seniority in
    the gradation list. Interpretation of rules does not
    depend on conduct of parties and it cannot be spelt
    out from other documents available. The sanctity is
    attributed to cadres because it creates vested
    rights. It is contended by the State Government
    that even assuming that there was a cadre prior to
    the Orissa Ministerial Service Rules, the same has
    disappeared after the Orissa Ministerial Service
    Rules came into force. Annexures-1 to 30 do not
    indicate any cadre at all. When there is no statute or
    rule holding the field, Government can by executive
    order regulate the services of the employees. In
    Sant Ram Sharma v. State of Rajasthan [A.I.R.
    1967 S.C. 1910.] , it has been held in para-7 that it
    does not mean that till statutory rules are framed in
    this behalf the Government cannot issue
    administrative instructions regarding the principle to
    be followed in promotions of the officers concerned.
    It is true that Government cannot amend or
    supersede the statutory rules by administrative
    instructions, but if the rules are silent on any
    particular point, Government can fill up the gap and
    supplement the rules and issue instructions not
    inconsistent with the rules already framed. In para-
    8 it has been held that the State Government has
    executive power, in relation to all matters with
    respect to which the Legislature of the State has
    power, to make laws. Reference in this connection

    – 25 –

    WA No. 814 of 2025

    has been made to the case of B.N. Nagarajan v.
    State of Mysore [A.I.R. 1966 S.C. 1942.] .

    26. The High Court of Andhra Pradesh in the case of

    T.A. Waheed Saheb vs. The State of Andhra Pradesh and

    Ors. (W.P.No.42518/2022) has held that once the field is

    occupied by the statutory law or rules, the cadre creation or

    abolition must be effected through statutory amendments

    rather than executive orders. The relevant paragraph is

    extracted hereunder:

    “10. Further, a useful reference could be made to the
    Division Bench ruling of the Karnataka High Court
    rendered in the case of M.V. Dixit and Ors. Vs. State
    of Karnataka and Ors.
    , wherein it has been pleased
    to hold in Paras 22, 23, 24 and 25 as under:-

    22. After the coming into force of the Civil Services
    Act, creation and abolition of posts (i.e. specifying
    different categories of posts in different branches of
    Public Service, specifying the total number of posts
    and nature of posts in each category and the scales
    of pay admissible to each category) can only be by
    way of Rules made in the manner prescribed in
    Section 3(2) of the said Act and not by any executive
    order issued under Article 162 of the Constitution.

    The field of Regulation of creation and abolition of
    posts, method of recruitment and conditions of

    – 26 –

    WA No. 814 of 2025

    service is now occupied by an enactment of State
    Legislature. Therefore, exercise of the power in
    regard to regulation of the matters falling in the
    occupied field can only be in accordance with the
    said Act and not otherwise by an executive order.

    23. ……………………xxxxx……………………

    24. ……………………xxxxx……………………

    25. ……………………xxxxx……………………”

    27. Thus, we are of the opinion that vide Government

    order dated 05.01.2021, the cadre of Work Inspector under

    the 2011 Rules cannot be abolished unless there is necessary

    amendment to that effect in the statutory rules. The

    Government Order dated 05.01.2021 is a mere policy decision

    that must be given effect by amending the rules. Unless the

    rules are amended, the cadre of Work Inspector continues to

    exists. Therefore, we reject the contention of the learned

    Additional Advocate General that the Government is

    empowered to abolish the post/cadre by taking executive

    decision and there is no requirement or necessity of amending

    the statutory rules to that effect.

    28. So far as question Nos.ii and iii are concerned, they

    can be taken together as both of them are interlinked. It is well

    – 27 –

    WA No. 814 of 2025

    settled that Government is not compelled to appoint a duly

    selected candidate inasmuch as mere selection or inclusion in

    merit list or final list does not create a vested or indefeasible

    right to appointment. The Government or the Authority may

    withhold the appointment for valid reasons including policy

    considerations, changes in eligibility or a conscious decision not

    to fill all vacancies. Therefore, a candidate cannot seek a writ of

    mandamus to compel appointment solely based on selection

    and the Government has the power to refuse or withhold the

    appointment provided there exist valid reasons.

    29. The Supreme Court, in the case of Shankarsan

    Dash v. Union of India, (1991) 3 SCC 47 has held that

    though the Government has power and discretion not to offer

    appointment to a duly selected candidate, but the State’s

    prerogative not to fill the advertised vacancies should be bona

    fide and non-arbitrary. Paragraph 7 of the said judgment is

    extracted under:

    “7. 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. Unless the relevant

    – 28 –

    WA No. 814 of 2025

    recruitment rules so indicate, the State is under no
    legal duty to fill up all or any of the vacancies.
    However, it does not mean that the State has the
    licence of acting in an arbitrary manner. 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. This correct position has been consistently
    followed by this Court, and we do not find any
    discordant note in the decisions in State of Haryana
    v. Subash Chander Marwaha
    [(1974) 3 SCC 220 :

    1973 SCC (L&S) 488 : (1974) 1 SCR 165] , Neelima
    Shangla v. State of Haryana
    [(1986) 4 SCC 268 :
    1986 SCC (L&S) 759] , or Jatinder Kumar v. State of
    Punjab
    [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 :
    (1985) 1 SCR 899] . “

    30. The Supreme Court, in the case of Jitendra Kumar

    v. State of Haryana, (2008) 2 SCC 161 has held as follows:

    42. The legal principle obtaining herein is not in
    dispute that the selectees do not have any legal right
    of appointment subject, inter alia, to bona fide action
    on the part of the State. We may notice some of the
    precedents operating in the field.

    43. In Shankarsan Dash v. Union of India [(1991) 3
    SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95]
    this Court held: (SCC pp. 50-51, para 7)
    “7. 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. Unless the relevant
    recruitment rules so indicate, the State is under no

    – 29 –

    WA No. 814 of 2025

    legal duty to fill up all or any of the vacancies.
    However, it does not mean that the State has the
    licence of acting in an arbitrary manner. 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. This correct position has been consistently
    followed by this Court, and we do not find any
    discordant note in the decisions in State of Haryana
    v. Subash Chander Marwaha
    [(1974) 3 SCC 220 :

    1973 SCC (L&S) 488] , Neelima Shangla v. State of
    Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759]
    or Jatinder Kumar v. State of Punjab [(1985) 1 SCC
    122 : 1985 SCC (L&S) 174] .”

    (emphasis supplied)

    44. Yet again in R.S. Mittal v. Union of India [1995
    Supp (2) SCC 230 : 1995 SCC (L&S) 787 : (1995) 30
    ATC 53] this Court held: (SCC p. 234, para 10)
    “10. … It is no doubt correct that a person on the
    select panel has no vested right to be appointed to
    the post for which he has been selected. He has a
    right to be considered for appointment. But at the
    same time, the appointing authority cannot ignore
    the select panel or decline to make the appointment
    on its whims. When a person has been selected by
    the Selection Board and there is a vacancy which can
    be offered to him, keeping in view his merit position,
    then, ordinarily, there is no justification to ignore
    him for appointment. There has to be a justifiable
    reason to decline to appoint a person who is on the
    select panel. In the present case, there has been a
    mere inaction on the part of the Government. No
    reason whatsoever, not to talk of a justifiable reason,
    was given as to why the appointments were not
    offered to the candidates expeditiously and in
    accordance with law. The appointment should have
    been offered to Mr Murgad within a reasonable time
    of availability of the vacancy and thereafter to the
    next candidate. The Central Government’s approach
    in this case was wholly unjustified.”

    – 30 –

    WA No. 814 of 2025

    (emphasis supplied)

    45. In Asha Kaul v. State of J&K [(1993) 2 SCC 573 :

    1993 SCC (L&S) 637 : (1993) 24 ATC 576] this Court
    held: (SCC pp. 580-81, para 8)
    “8. It is true that mere inclusion in the select list
    does not confer upon the candidates included therein
    an indefeasible right to appointment (State of
    Haryana v. Subash Chander Marwaha
    [(1974) 3 SCC
    220 : 1973 SCC (L&S) 488] ; Mani Subrat Jain v.

    State of Haryana [(1977) 1 SCC 486 : 1977 SCC
    (L&S) 166] ; State of Kerala v. A. Lakshmikutty
    [(1986) 4 SCC 632 : (1986) 1 ATC 735] ) but that is
    only one aspect of the matter. The other aspect is
    the obligation of the Government to act fairly. The
    whole exercise cannot be reduced to a farce. Having
    sent a requisition/request to the Commission to
    select a particular number of candidates for a
    particular category,–in pursuance of which the
    Commission issues a notification, holds a written
    test, conducts interviews, prepares a select list and
    then communicates to the Government–the
    Government cannot quietly and without good and
    valid reasons nullify the whole exercise and tell the
    candidates when they complain that they have no
    legal right to appointment. We do not think that any
    Government can adopt such a stand with any
    justification today.”

    (See also A.P. Aggarwal v. Govt. of NCT of Delhi
    [(2000) 1 SCC 600 : 2000 SCC (L&S) 206] .)

    46. In Food Corpn. of India v. Bhanu Lodh [(2005) 3
    SCC 618 : 2005 SCC (L&S) 433] this Court held:

    (SCC p. 629, para 14)
    “14. Merely because vacancies are notified, the
    State is not obliged to fill up all the vacancies unless
    there is some provision to the contrary in the
    applicable rules. However, there is no doubt that the
    decision not to fill up the vacancies, has to be taken
    bona fide and must pass the test of reasonableness
    so as not to fail on the touchstone of Article 14 of the
    Constitution. Again, if the vacancies are proposed to
    be filled, then the State is obliged to fill them in

    – 31 –

    WA No. 814 of 2025

    accordance with merit from the list of the selected
    candidates. Whether to fill up or not to fill up a post,
    is a policy decision, and unless it is infected with the
    vice of arbitrariness, there is no scope for
    interference in judicial review.”

    31. In the case of Nilamani Das v. State of Orissa,

    1982 SCC OnLine Ori 130 it has been held as follows:

    ”8. For forming a cadre, notification forming
    the said cadre is to be published in the gazette.
    Cadres are also formed by rules under Article 309 of
    the Constitution of India or by express order by
    declaring such cadre exercising powers under Article
    162
    of the Constitution. There has been no
    declaration, no publication, no rules and no provision
    for recruitment or transfer or seniority in the
    gradation list. Interpretation of rules does not
    depend on conduct of parties and it cannot be spelt
    out from other documents available. The sanctity is
    attributed to cadres because it creates vested rights.

    It is contended by the State Government that even
    assuming that there was a cadre prior to the Orissa
    Ministerial Service Rules, the same has disappeared
    after the Orissa Ministerial Service Rules came into
    force. Annexures-1 to 30 do not indicate any cadre
    at all. When there is no statute or rule holding the
    field, Government can by executive order regulate
    the services of the employees. In Sant Ram Sharma
    v. State of Rajasthan [A.I.R.
    1967 S.C. 1910.] , it
    has been held in para-7 that it does not mean that

    – 32 –

    WA No. 814 of 2025

    till statutory rules are framed in this behalf the
    Government cannot issue administrative instructions
    regarding the principle to be followed in promotions
    of the officers concerned. It is true that Government
    cannot amend or supersede the statutory rules by
    administrative instructions, but if the rules are silent
    on any particular point, Government can fill up the
    gap and supplement the rules and issue instructions
    not inconsistent with the rules already framed. In
    para-8 it has been held that the State Government
    has executive power, in relation to all matters with
    respect to which the Legislature of the State has
    power, to make laws.”

    32. It is also well settled that the Government’s

    discretion not to offer the appointment to a selected candidate

    is circumscribed by constitutional principles and statutory

    constraints. A candidate who is selected has a legitimate

    expectation of appointment.

    33. In the case of Union of India v. Uzair Imran,

    (2024) 20 SCC 345 it has been held as follows:

    23. Notwithstanding this settled legal position,
    the stage when ineligibility is cited for not offering
    employment also assumes importance. It is indeed
    indisputable that none has any legal right to claim
    public employment. In terms of Article 16 of the

    – 33 –

    WA No. 814 of 2025

    Constitution, a candidate has only a right to be
    considered therefore. Once a candidate is declared
    ineligible to participate in the selection process at the
    threshold and if he still wishes to participate in the
    process perceiving that his candidature has been
    arbitrarily rejected, it is for him to work out his
    remedy in accordance with law. However, if the
    candidature is not rejected at the threshold and the
    candidate is allowed to participate in the selection
    process and ultimately his name figures in the merit
    list — though such candidate has no indefeasible
    right to claim appointment — he does have a limited
    right of being accorded fair and non-discriminatory
    treatment.

    24. Given the stages of the process that the
    candidate has successfully crossed, he may not have
    a vested right of appointment but a reasonable
    expectation of being appointed having regard to his
    position in the merit list could arise. The employer, if
    it is a State within the meaning of Article 12 of the
    Constitution, would have no authority to act in an
    arbitrary manner and throw the candidate out from
    the range of appointment, as distinguished from the
    zone of consideration, without rhyme or reason. The
    employer State being bound by Article 14 of the
    Constitution, the law places an obligation, nay duty,
    on such an employer to provide some justification by
    way of reason. If plausible justification is provided,
    the courts would be loath to question the justification

    – 34 –

    WA No. 814 of 2025

    but the justification must be such that it is rational
    and justifiable, and not whimsical or capricious,
    warranting non-interference.

    34. From the aforesaid authorities it can be inferred

    that not offering appointment to a duly selected candidates

    should be for justified and valid reasons and not for arbitrary,

    illegal or mala fide reasons.

    35. In the case of Shubham Patel Vs. State of

    Madhya Pradesh (MANU/MP/3059/2023) it has been held

    as follows:

    5. The Supreme Court in the case of Union Territory
    of Chandigarh Vs. Dilbagh Singh and Others

    reported in (1993) 1 SCC 154 has held as under:

    “12. If we have regard to the above enunciation that
    a candidate who finds a place in the select list as a
    candidate selected for appointment to a civil post,
    does not acquire an indefeasible right to be
    appointed in such post in the absence of any specific
    rule entitling him for such appointment and he could
    be aggrieved by his non-appointment only when the
    Administration does so either arbitrarily or for no
    bona fide reasons, it follows as a necessary
    concomitant that such candidate even if has a
    legitimate expectation of being appointed in such
    posts due to his name finding a place in the select

    – 35 –

    WA No. 814 of 2025

    list of candidates, cannot claim to have a right to be
    heard before such select list is cancelled for bona
    fide and valid reasons and not arbitrarily. In the
    instant case, when the Chandigarh Administration
    which received the complaints about the unfair and
    injudicious manner in which select list of candidates
    for appointment as conductors in CTU was prepared
    by the Selection Board constituted for the purpose,
    found those complaints to be well founded on an
    enquiry got made in that regard, we are unable to
    find that the Chandigarh Administration had acted
    either arbitrarily or without bona fide and valid
    reasons in cancelling such dubious select list.
    Hence, the contentions of the learned counsel for
    the respondents as to the sustainability of the
    judgment of CAT under appeal on the ground of
    non-affording of an opportunity of hearing to the
    respondents (candidates in the select list) is a
    misconceived one and is consequently rejected.”

    36. Thus, a duly selected candidate may not have a

    legal right to appointment and the Government may withhold

    from appointing a selected candidate, provided the decision not

    to give appointment is neither mala fide, nor arbitrary and

    grounded in statutory rules or a policy decision. Where there

    exist statutory rules or where a candidate has a legitimate

    expectation grounded in prior conduct or explicit assurance, the

    – 36 –

    WA No. 814 of 2025

    Court may interfere and compel the Government to offer the

    appointment.

    37. In the present case, the select list was published on

    16.09.2017 after due selection in pursuance to the notification

    published on 06.04.2016. The provisional select list was

    published and thereafter the final select list came to be

    published on 16.09.2017 as mentioned above, the petitioners

    were placed at Sl.Nos.4, 6 and 2 respectively in the select list.

    The Government took a conscious decision to give appointment

    to those candidates who had secured more than 25% marks in

    the selection result. The petitioners’ original documents were

    taken for verification on 15.02.2019. The Director-respondent

    No.2 in his affidavit filed in W.P.No.3077/2019 reiterated the

    Government’s decision to give appointments to the persons

    who had secured more than 25% marks in the selection

    process and therefore, we are of the view that the petitioners

    should have the legitimate expectation grounded in the prior

    conduct and explicit assurance of the Government inasmuch as

    they had secured more than 25% marks in the selection

    process.

    – 37 –

    WA No. 814 of 2025

    38. Against the 211 posts advertised, petitioners are

    only 4 in number and even if the Government has taken the

    decision to abolish 380 posts in the cadre of Work Inspector, as

    per the Government’s assurance in the letter of the Secretary,

    Urban Development Department dated 05.12.2017, the

    petitioners should be considered for appointment and in the

    case of abolition of the cadre by amending the rules, the

    petitioners should be merged into an equivalent cadre.

    39. We, therefore, set aside the impugned judgment

    and order passed by the learned Single Judge and consequently

    the endorsement dated 25.09.2017 and allow this writ appeal.

    The Government is directed to give appointment to the

    petitioners to the post of Work Inspector within two months

    from today. In the event of an amendment to the 2011 Rules

    abolishing the cadre of Work Inspector, the Government may

    merge the petitioners’ posts to an equivalent cadre.

    Sd/-

    (D K SINGH)
    JUDGE

    Sd/-

    (S RACHAIAH)
    JUDGE
    RKA



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