Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 104 OF 2009
(Arising out of SLP (C) No. 8586 of 2006)
S.S. BALU & ANR. … APPELLANTS
Versus
STATE OF KERALA & ORS. … RESPONDENTS
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. Appellants herein are before us aggrieved by and dissatisfied with a
judgment and order dated 5.10.2005 passed by a Division Bench of the High
Court of Kerala at Ernakulam in Writ Appeal No. 53 of 2005 (A) and others
whereby and whereunder the Writ Appeals preferred by the State of Kerala
from a judgment and order dated 25.8.2004 passed by a learned single judge
of the said Court in O.P. No. 28082 of 2002 and others were allowed.
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3. Appellants herein pursuant to or in furtherance of a requisition made
by the State of Kerala before the Kerala Public Service Commission (for
short, “the Commission”) applied for the post of Lower Primary/Upper
Primary School Assistants. On 5.6.1997, the Commission prepared a rank
list, which was in force from 5.6.1997 to 5.6.2000. Appellants’ name
figured therein. The vacancies, however, were not filled up. However, as
no vacancy was filled up by the Deputy Director of Education, writ petitions
were filed before the Kerala High Court praying for issuance of a writ of
mandamus or any other writ or order directing the Deputy Director of
Education to report all the vacancies to the Commission so as to enable it to
advise the respective candidates pursuant whereto and in furtherance
whereof the appointing authority may issue offers of appointment. It is
stated that the appellants were parties therein.
4. On or about 3.6.2000, pursuant to the direction of the High Court,
dated 22.5.2000, the Deputy Director of Education reported 125 vacancies
and on or about 5.6.2000, he reported further 50 vacancies just before the
expiry of the rank list with a note that they were anticipated vacancies.
However, as the vacancies were shown as anticipated vacancies, the
Commission could not issue letter of advise against those 175 vacancies
reported by the Deputy Director of Education.
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5. On or about 24.10.2001, the said writ petitions were heard and
disposed of by the Division Bench of the High Court, holding:
“We are of the view since there is controversy
between the parties with regard to the number of
vacancies it would be appropriate that a direction
be given to first respondent to take a decision on
the dispute raised in this proceeding.”
6. In compliance of the said judgment, the State of Kerala issued a
Government Order dated 15.1.2002 reporting that there was no vacancy.
7. Another writ petition marked as O.P. No. 28082 of 2002 was filed by
a few candidates praying for quashing of the said Government Order dated
15.1.2002 upon grant of a declaration that 175 vacancies reported by the
Deputy Director of Education should be filled from amongst the candidates
whose names find place in the select list and for consequential directions.
8. By reason of a judgment and order dated 25.8.2004, the High Court
held:
“26. At this stage, I consider it necessary to
advert to the contention of the standing counsel of
the Commission that after the expiry of Ext. P1
rank list a new list has come into operation and
therefore candidates included in Ext. P1 rank list
cannot be advised for appointment. I cannot agree
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to the above argument of the learned counsel. 175
vacancies were reported to the Commission before
the expiry of Ext. P1 rank list. Since those
vacancies were wrongly described as anticipated
vacancies the Commission did not advise
candidates against those vacancies. Thereupon,
aggrieved candidates approached this Court. A
st
Division Bench of this Court directed the 1
respondent to report the vacancies correctly. The
st
1 respondent, however, issued Ext. P3 order
without taking into account all relevant aspect. As
I have found that 175 vacancies already reported
were not anticipated vacancies but vacancies
which had, in fact, occurred prior to the expiry of
Ext. P1, candidates included in Ext. P1 are entitled
to be advised for appointment against those
vacancies. The legitimate claim of the petitioners
cannot be denied for the reason that during the
pendency of the writ petitions a new list has come
into operation. I am clearly of the view that what
is legitimately due to the candidates in Ext. P1
should be given to them.”
Appellants were not parties to the said writ petitions.
9. The State of Kerala preferred an appeal thereagainst before the
Division Bench of the said Court, which was marked as Writ Appeal No. 53
of 2005. Before the High Court, however, appellants got themselves
impleaded as respondents 5 and 6 respectively. The said Writ Appeal was
allowed by reason of the impugned judgment directing the Commission to
advise in respect of 18 of the original petitioners who had filed the writ
petition bearing O.P. No. 28082 of 2002 to quash the Government Order
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dated 15.1.2002. No direction was issued in respect of those who got
themselves impleaded as parties therein including the appellants herein.
10. Appellants are, thus, before us, contending that as their names
appeared in the ‘rank list’ and they being seniors to some of the original writ
petitioners they should also be directed to be appointed.
11. Ms. Malini Poduval, learned counsel appearing on behalf of the
appellants would submit:
i. the High Court committed a serious error of law in passing the
impugned judgment insofar as it failed to take into
consideration that as the appellants are similarly situated with
that of the original writ petitioners to whom the State
Government agreed to give appointment.
ii. There was absolutely no reason as to why they should have
been discriminated against particularly when they had also got
themselves impleaded as respondents in the writ appeal.
12. Mr. Vipin Nair, learned counsel appearing on behalf of the
respondents, on the other hand, would urge that the respondents having filed
no writ petition and keeping in view of the fact that not only the rank list in
6
nd
question but also the 2 rank list for the period between 16.9.2002 and
15.9.2005 are exhausted, the impugned judgment is wholly unassailable.
13. The legality and/or the validity of Government Order dated
15.1.2002, as noticed hereinbefore, was questioned, inter alia, on the
premise that the actual vacancy position had been suppressed by the State.
A finding of fact to that effect appears to have been arrived at by the learned
single judge of the High Court in his judgment and order dated 25.8.2004,
holding:
“24. Respondents 1 and 2 have got a contention
that 65% of the N.J.D. vacancies alone shall be
reckoned as reportable vacancies. I do not agree.
As rightly submitted by the petitioners, vacancies
had been reported based on the 65% set apart for
direct recruitment and once those vacancies fall
vacant consequent on the non joining duty of the
candidates advised for appointment, a further
deduction of 35% from the N.J.D. vacancies is not
justified.
25. It is not disputed that total vacancies
including N.J.D. vacancies reported to the
Commission after 5.12.1997 was 580 (barring 175
vacancies described as anticipated vacancies).
Therefore the number of unreported vacancies will
come to 208. When state of affairs stood as above,
nd
the 2 respondent reported 125 vacancies on
3.6.2000 and 50 vacancies on 5.6.2000 as directed
by this Court. The reporting was done with the
rider that the above 175 vacancies were only
anticipated vacancies. As I have found that there
were, at any rate, 208 reportable vacancies, I have
7
nd
no hesitation to hold that the 2 respondent was
not justified in informing the Commission that 175
vacancies were anticipated vacancies. Ext. P3 is
therefore unsustainable.”
14. The matter might have been different, had the learned single judge as
also the Division Bench come to a conclusion that in fact there existed 125
vacancies wherefor requisition was sent to the Commissioner. The
existence of actual number of vacancies being in dispute, it is difficult for us
to opine as has been contended by the learned counsel that all such
vacancies existed. Before the Division Bench of the High Court, the State
conceded that 18 original writ petitioners may be appointed stating that they
were the actual beneficiaries of the judgment. Such a stand on the part of
the State was accepted. The Division Bench of the High Court did not go
into the other contentions raised by the parties thereto. No factual
foundation, therefore, has been laid before us for arriving at the conclusion
that all the 125 vacancies existed.
15. There is another aspect of the matter which cannot also be lost sight
of. A person does not acquire a legal right to be appointed only because his
name appears in the select list. [See Pitta Naveen Kumar & ors. vs. Raja
Narasaiah Zangiti & ors. (2006) 10 SCC 261].
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16. The state as an employer has a right to fill up all the posts or not to
fill them up. Unless a discrimination is made in regard to the filling up of
the vacancies or an arbitrariness is committed, the concerned candidate will
have no legal right for obtaining a writ of or in the nature of mandamus.
[See Batiarani Gramiya Bank vs. Pallab Kumar & ors. (2004) 9 SCC 100]
In Shankarsan Dash vs. Union of India [(1991) 3 SCC 47], a
Constitution Bench of this Court held:
“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
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.”
In State of Haryana vs. Subash Chander Marwaha [(1974) 3 SCC
220], this Court held:
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“The mere fact that a candidate’s name appears in
the list will not entitle him to a mandamus that he
be appointed. Indeed, if the State Government
while making the selection for appointment had
departed from the ranking given in the list, there
would have been a legitimate grievance on the
ground that the State Government had departed
from the rules in this respect…
11. It must be remembered that the petition is
for a mandamus. This Court has pointed out in Dr
Rai Shivendra Bahadur v. Governing Body of the
Nalanda College that in order that mandamus may
issue to compel an authority to do something, it
must be shown that the statute imposes a legal
duty on that authority and the aggrieved party has
a legal right under the statute to enforce its
performance. Since there is no legal duty on the
State Government to appoint all the 15 persons
who are in the list and the petitioners have no legal
right under the rules to enforce its performance the
petition is clearly misconceived.”
In Pitta Naveen Kumar vs. Raja Narasaiah Zangiti [(2006) 10 SCC
261], this Court held:
“….A candidate does not have any legal right to
be appointed. He in terms of Article 16 of the
Constitution of India has only a right to be
considered therefor. Consideration of the case of
an individual candidate although ordinarily is
required to be made in terms of the extant rules but
strict adherence thereto would be necessary in a
case where the rules operate only to the
disadvantage of the candidates concerned and not
otherwise…”
In State of Rajasthan & ors. vs. Jagdish Chopra [(2007) 8 SCC 161],
this Court held:
10
“9 . Recruitment for teachers in the State of
Rajasthan is admittedly governed by the statutory
rules. All recruitments, therefore, are required to
be made in terms thereof. Although Rule 9(3) of
the Rules does not specifically provide for the
period for which the merit list shall remain valid
but the intent of the legislature is absolutely clear
as vacancies have to be determined only once in a
year. Vacancies which arose in the subsequent
years could be filled up from the select list
prepared in the previous year and not in other
manner. Even otherwise, in absence of any rule,
ordinary period of validity of select list should be
one year. In State of Bihar v. Amrendra Kumar
Mishra (2006) 12 SCC 561, this Court opined:
(SCC p.564, para 9)
“9. In the aforementioned situation, in
our opinion, he did not have any legal
right to be appointed. Life of a panel,
it is well known, remains valid for a
year. Once it lapses, unless an
appropriate order is issued by the
State, no appointment can be made
out of the said panel.”
It was further held: (SCC p.565, para 13)
“13. The decisions noticed
hereinbefore are authorities for the
proposition that even the wait list
must be acted upon having regard to
the terms of the advertisement and in
any event cannot remain operative
beyond the prescribed period.”
xxx xxx xxx
11 . It is well-settled principle of law that even
selected candidates do not have legal right in this
behalf. (See Shankarsan Dash v. Union of India
(1991) 3 SCC 47, and Asha Kaul v. State of J&K
(1993) 2 SCC 573)”
17. Furthermore, the rank list was valid for a period of three years. Its
validity expired on 5.6.2000. Another Select List was published for the
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period from 16.9.2002 to 15.9.2005. Vacancies in terms of the said Select
List have also been filled up.
18. It is also well settled principle of law that “delay defeats equity”.
Government Order was issued on 15.1.2002. Appellants did not file any
writ application questioning the legality and validity thereof. Only after the
writ petitions filed by others were allowed and State of Kerala preferred an
appeal thereagainst, they impleaded themselves as party respondents. It is
now a trite law that where the writ petitioner approaches the High Court
after a long delay, reliefs prayed for may be denied to them on the ground of
delay and laches irrespective of the fact that they are similarly situated to
the other candidates who obtain the benefit of the judgment. It is, thus, not
possible for us to issue any direction to the State of Kerala or the
Commission to appoint the appellants at this stage.
In New Delhi Minicipal Council v. Pan Singh and Ors. (2007) 9 SCC
278, this Court held:
“16. There is another aspect of the matter which
cannot be lost sight of. The respondents herein
filed a writ petition after 17 years. They did not
agitate their grievances for a long time. They, as
noticed herein, did not claim parity with the 17
workmen at the earliest possible opportunity. They
did not implead themselves as parties even in the
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reference made by the State before the Industrial
Tribunal. It is not their case that after 1982, those
employees who were employed or who were
recruited after the cut-off date have been granted
the said scale of pay. After such a long time,
therefore, the writ petitions could not have been
entertained even if they are similarly situated. It is
trite that the discretionary jurisdiction may not be
exercised in favour of those who approach the
court after a long time. Delay and laches are
relevant factors for exercise of equitable
jurisdiction.”
{See also Virender Chaudhary vs. Bharat Petroleum Corporation & Ors.
[2008 (15) SCALE 67]}
19. For the reasons aforementioned, there is no merit in this appeal. It is
dismissed accordingly. No costs.
.……………………………….J.
[S.B. Sinha]
...…………………………..…J.
[Dr. Mukundakam Sharma]
New Delhi;
JANUARY 13, 2009