Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
CASE NO.:
Appeal (civil) 5368 of 2007
PETITIONER:
Dir. S.C.T.I. for Med. Sci. & Tech. & Anr.
RESPONDENT:
M. Pushkaran
DATE OF JUDGMENT: 23/11/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
[Arising out of SLP (Civil) No. 6619 of 2007]
S.B. SINHA, J :
1. Leave granted.
2. A short question which arises for consideration in this appeal is as to
whether the respondent herein had any legal right for being appointed
against the post of three security guards advertised by the appellant \026
institute.
3. The basic fact of the matter is not in dispute. An advertisement was
issued for appointment to the post of security guards. There were three
permanent posts. The select list contained names of five candidates. The
name of the respondent appeared at Sl. No. 4 therein. It was finalized on
11.04.2005. It had a validity period of one year i.e. upto 10.04.2006.
Whereas two candidates were offered appointments on 13.04.2005 and
5.05.2005, the third candidate was offered appointment on 13.06.2005. He
declined the same. Respondent, however, for reasons best known to the
appellant, was not offered any appointment. He filed a writ petition
questioning his non-appointment on 12.12.2005.
4. On or about 13.07.2005, however, a purported policy decision was
taken to contract out some of the services in a phased manner to make the
administration efficient and cost effective in the following terms:
\023After detailed deliberations, it was resolved that
(i) a copy of the request sent to the Employment
Exchange, Thiruvananthapuram may
simultaneously be circulated/ posted by the
Institute to all the Employment Exchanges in
Kerala especially in case of direct recruitment of
Group \026 D posts specifying the number of
candidates to be sponsored for each post so as to
achieve a wider coverage; (ii) in the case of Group
C and B Direct recruitment posts, paper
advertisement shall, continue to be resorted in one
or two leading newspapers and (iii) for temporary
vacancies/ leave vacancies of Cleaning Attendants/
Security Guards, the external contract system
prevalent in BMT Wing may be extended to the
Hospital Wing also in a phased manner.\024
5. A resolution was adopted by the Governing Body in a meeting held at
the Institute on 29.12.2005 in the following terms:
\023We have been deliberating for quite sometime on
contracting out some of the services on a phased
manner to make it more efficient and cost
effective. It is noted that the security at BMT
Wing, Poojappura that was contracted out on a
trial basis has been found successful.
It was noted that at present there are 2 permanent
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
vacancies of Security Guards and 2 permanent
posts of Drivers that are lying vacant.
It was resolved to abolish these vacant posts and
services may be contracted out/ hired and ratify the
decision of the Director not to fill the two vacant
posts of Security Guards and Drivers on permanent
basis.\024
6. A learned Single Judge of the High Court by a judgment and order
dated 20.09.2006 inter alia opined:
\0235. I do not think that the petitioner has made out a
case for interference. No doubt, the petitioner
approached this Court on 12.12.2005. Ext. R1(b)
decision is dated 29.12.2005. But, I do not think
that that is sufficient to overturn the decision of the
management. The question as to which are the
posts to be filled up, is all a management decision.
Ordinarily, it is not for this Court to veto the
wisdom of the employer in regard to the posts
which are to be retained and posts which are to be
abolished. A decision to abolish a post cannot be
attacked by a person figuring in a rank list, unless,
no doubt, an extraordinarily case of malice or per
se arbitrary action is established. Apparently, the
respondents felt that the post need not be retained,
having regard to the advantages that would flow
from contracting of these services as also the
pecuniary loss that would otherwise flow. It is
hard to characterize such a decision as arbitrary, as
sought to be shown in the Reply Affidavit. It is
settled law that a person in the rank list has no
legal right to command the employer to appoint
him. This is not a case where after having taken a
decision to fill up the posts, the respondent is not
offering appointment to the petitioner. Ext. R1(b)
is not challenged by petitioner. In such
circumstances, the Writ petition fails and it is
dismissed.\024
7. On an intra-court appeal preferred by the respondent herein from the
said judgment and order, the Division Bench, however, reversed the same,
inter alia, holding:
\023\005If the vacancy was abolished necessarily there
was no question of appointment either on
substantial or on temporary basis. There is a
decision to fill it up on temporary basis. Thus,
contract appointment reveal the existence of the
vacancy. The 3rd among the vacancies notified
was one really intended to be filled up even on
13.6.2005 when the 3rd rank holder in the list had
been offered appointment. The decision contained
in Ext. R1(b) is the decision taken by the
Governing Body. The petitioner/ appellant need
not challenge the decision taken by the
Government Body, when there is no decision in
Ext. R1(b) to abolish the post but only to fill up the
permanent posts on contract basis. Then, the next
person included in the list for regular appointment
has to be considered\005\024
8. Appellants are, thus, before us:
9. Mr. L. Nageshwara Rao, learned senior counsel appearing on behalf
of the appellants, submitted that the Division Bench of the High Court
committed a serious error in holding that there was a vacancy on a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
temporary basis.
It was urged that keeping in view a number of decisions of this Court,
the impugned judgment is wholly unsustainable. Reliance in this behalf has
been placed on Shankarasan Dash v. Union of India [(1991) 3 SCC 47],
State of Bihar and Others v. Md. Kalimuddin and Others [(1996) 2 SCC 7]
and Punjab State Electricity Board and Others v. Malkiat Singh[(2005) 9
SCC 22].
10. Mr. P.S. Narasimha, learned counsel appearing on behalf of the
respondent, on the other hand, would submit that the institution had four
departments. In some of the departments a policy decision to contract out
the services was taken; but, so far as the department in which the respondent
was to be appointed, no policy decision had been adopted for contracting out
the job of the security persons and in that view of the matter the respondent
had a legitimate expectation of his being appointed.
11. The law operating in the field in this behalf is neither in doubt nor in
dispute. Only because the name of a person appears in the select list, the
same by itself may not be a ground for offering him an appointment. A
person in the select list does not have any legal right in this behalf.
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.
12. In Shankarsan Dash v. Union of India [(1991) 3 SCC 47], this Court
held:
\0237 . 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
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. Subhash
Chander Marwaha, Neelima Shangla v. State of
Haryana, or Jatendra Kumar v. State of Punjab.\024
13. Yet again in R.S. Mittal v. Union of India [1995 Supp (2) SCC 230],
this Court held:
\023It 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
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 n ext candidate.
The Central Government\022s approach in this case
was wholly unjustified.\024
(Emphasis supplied)
14. In Asha Kaul (Mrs.) and Another v. State of Jammu and Kashmir
[(1993) 2 SCC 573], this Court held:
\0238. 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. Subhash Chander Marwaha; Mani
Subrat Jain v. State of Haryana; State of Kerala v.
A. Lakshmikutty) 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, \027 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 \027 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\005\024
{[See also A.P. Aggarwal v. Govt. of NCT of Delhi and Another
[(2000) 1 SCC 600]}.
15. In Food Corpn. Of India and Others v. Bhanu Lodh and Others
[(2005) 3 SCC 618], this Court held:
\02314. 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 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.\024
16. It is, therefore, evident that whereas the selectee as such has no legal
right and the superior court in exercise of its power of judicial review would
not ordinarily direct issuance of any writ in absence of any pleading and
proof of mala fide or arbitrariness on the part of the employer. Each case,
therefore, must be considered on its own merit.
17. In All India SC & ST Employees\022 Association and Another v. A.
Arthur Jeen and Others [(2001) 6 SCC 380], it was opined:
\02310. Merely because the names of the candidates
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
were included in the panel indicating their
provisional selection, they did not acquire any
indefeasible right for appointment even against the
existing vacancies and the State is under no legal
duty to fill up all or any of the vacancies as laid
down by the Constitution Bench of this Court,
after referring to earlier cases in Shankarsan Dash
Vs. Union of India.
[See also Malkiat Singh (supra), Pitta Naveen Kumar and Others v.
Raja Narasaiah Zangiti and Others (2006) 10 SCC 261, State of Rajasthan &
Ors. V. Jagdish Chopra 2007 (10) SCALE 470, Union of India & Others v.
S. Vinodh Kumar & Others, 2007 (11) SCALE 257 and State of M.P. & Ors.
v. Sanjay Kumar Pathak & Ors. 2007 (12) SCALE 72]
18. The application of law would, therefore, depend upon the fact
situation obtaining in each case. The judgment of the High Court in view of
the aforementioned authoritative pronouncements cannot be said to be
perverse. The respondent was to be offered with the appointment at a point
of time when no policy decision was taken. There was, thus, no reason not
to offer any appointment in his favour. Why the select panel was ignored
has not been explained. Even the purported policy decision was not in their
contemplation. We, therefore, do not see any reason to interfere with the
impugned judgment.
19. Furthermore, the respondent is an ex-serviceman. He in ordinary case
should have been offered appointment particularly when three posts were
vacant. The decision to abolish posts was not taken at a point of time when
he had filed the writ petition. It was expected that on 16.06.2005 when the
third candidate refused to join the post, he should have been offered the
same.
20. The policy decision to abolish the posts as also contracting out the
security services was taken by the appellant much thereafter, viz., on or
about 29.12.2005. We are, therefore, of the opinion that it is not a fit case
where we should interfere with the impugned judgment. The appeal is
dismissed. No costs.