Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
CASE NO.:
Appeal (civil) 3987 of 2007
PETITIONER:
State of Rajasthan & Ors
RESPONDENT:
Jagdish Chopra
DATE OF JUDGMENT: 30/08/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 3987 OF 2007
(Arising out of SLP (C) No.18940 of 2005)
S.B. Sinha, J.
1. Leave granted.
2. Appellant-State employs teachers on yearly basis. Vacancies for each
year are separately determined. Recruitment of teachers is made in terms of
Rajasthan Education Subordinate Services Rules, 1971 (the Act). It remains
valid for one year that is from the first day of April to 31st March. Rule 9(3)
of the said Rules read thus ;
"Rule 9(3) Whether vacancies can be determined
more than once in a year.
Vacancies shall be determined only once a year:
Vacancies occurring after the Departmental
Promotion Committee meeting has been held shall
be treated as the vacancies of the next year.
Variation in the vacancies that may crop up
between the date of requisitioning the Department
Promotion Committee and the date of
Departmental Promotion Committee meeting held
shall be taken into account at the Departmental
Promotion Committee meeting."
3. For the year 1995-96, there were 33 vacancies and advertisements
were issued therefor. Respondent herein was one of the applicants for the
said post. The Selection Committee prepared a select list. The respondent’s
name figured at serial No.10 of the said list. Out of 33 vacancies, 19 posts
were to be filled up by Teachers (Physical Education) and 14 posts were
meant for Teachers (Grade-III). Out of 19 posts of Teachers (Physical
Education), 9 posts were for General Category candidates; 5 posts were
reserved for OBC candidates; 2 posts for Scheduled Castes candidate and
one post for Scheduled Tribes candidate. One post was to be filled on the
vacancies arising out of appointment on compassionate grounds. The date
of joining was fixed on 12.04.1996. The candidate placed at serial No.8 in
the merit list did not join. The vacant post was said to have been carried
forward to 1996-97. Respondent had also applied for the post of Teacher
(Physical Education) in the said year but he was been placed at serial No.23
in the merit list and, thus, was not found fit to be appointed in 1996-97 also.
He filed a writ petition before the Rajasthan High Court. On the
premise that the validity of the merit list had expired, a learned Single Judge
of the said High Court opined that he had no legal right to be appointed
stating :
"Since, respondent prepares a new panel every
year and it will remain effective prior to the end of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
that session, i.e., till March. Hence, after the
expiry of duration of panel, the candidates
included in that panel, will not have remained any
legal right to be appointed. In the present case
also, the duration of the panel has been expired and
appointments have already been made in
accordance with the same..."
4. An intra-court appeal was preferred thereagainst. A Division Bench
of the High Court, however, reversed the said decision without adverting to
the question as to whether the select list has remained valid or not. It was
held :
"Taking into consideration all the facts and
circumstances of the case, the defence taken that
till 31st of March, 1996 there was no post vacant in
the Department, is difficult to accept. The
Petitioner did all whatever he could have done at
the relevant time to protect his right of
consideration for appointment. The ground on
which the writ petition was dismissed is not
tenable.
As a result of the aforesaid discussion this
appeal succeeds and the same is allowed. The
order dated 1.9.1997 of the learned Single Judge in
S.B. Civil Writ Petition No.4599/1996, impugned
in this appeal, is quashed and set aside. The writ
petition is allowed and declared post of Teacher
(Physical Education) fallen vacant due to non-
joining of the appointed candidate stood at serial
No.8 of the merit list. The Respondents are
directed to give appointment to the Petitioner on
the post of Teacher (Physical Education), within a
period of one month from the date of receipt of the
copy of this judgment. The appointment shall
relate back to the date on which the appointment
candidate stood at serial No.9 of the merit list,
ought to have joined the post.
The Petitioner appellant shall not be entitled
for the actual monetary benefits for the intervening
period i.e. the date on which he would have joined
the service and the date of his actual joining,
however, this period shall be counted for other
service and retrial benefits."
5. The State is, thus, in appeal before us.
Mr. Aruneshwar Gupta, Additional Advocate General, appearing on
behalf of the appellant submitted that the respondent did not have any legal
right to be appointed, particularly, when the validity of a merit list is
confined only to one year.
6. Mr. Aishwarya Bhati, learned counsel appearing on behalf of the
respondent, on the other hand, urged that as the candidates were to join their
posts on 12.4.1996, the State itself did not adhere to the period during which
of the vacancies were required to be filled up. According to the learned
counsel, respondent has already joined his services.
Learned counsel submitted that Rule 9(3) does not fix the period of
validity of the panel and in that view of the matter, the respondent, who was
on the wait list, should have been appointed as one of the selected candidates
could not join.
7. 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
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 & Ors. v.
Amrendra Kumar Mishra [2006 (9) SCALE 549], this Court opined :
"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 :
"The decision noticed hereinbefore are authorities
for the proposition that even the waitlist must be
acted upon having regard to the terms of the
advertisement and in any event cannot remain
operative beyond the prescribed period."
8. The learned single Judge of the High Court was, therefore, correct in
holding that the second respondent has no legal right to be appointed.
It is well settled principle of law that even selected candidates do not
have legal right in this behalf. [See Shankarasan Dash v. Union of India -
1991 (2) SCR 567, Asha Kaul (Mrs.) and Another v. State of Jammu and
Kashmir and Others (1993) 2 SCC 577]
In K. Jayamohan v. State of Kerala and Another [(1997) 5 SCC 170],
this court held:
"5. It is settled legal position that merely because a
candidate is selected and kept in the waiting list, he
does not acquire any absolute right to appointment.
It is open to the Government to make the
appointment or not. Even if there is any vacancy, it
is not incumbent upon the Government to fill up
the same. But the appointing authority must give
reasonable explanation for non- appointment.
Equally, the Public Service
Commission/recruitment agency shall prepare
waiting list only to the extent of anticipated
vacancies. In view of the above settled legal
position, no error is found in the judgment of the
High Court warranting interference."
[See also Munna Roy v. Union of India and Others, (2000) 9 SCC
283]
In All India SC & ST Employees’ Association and Another v. A.
Arthur Jeen and Others [(2001) 6 SCC 380], it was opined:
"10. Merely because the names of the candidates
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. Para 7 of the said judgment
reads thus :-
"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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
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 vs. Subhash
Chander Marwaha, Neelima Shangla vs. State of
Haryana or Jatendra Kumar vs. State of Punjab."
9. The principles laid down in the aforementioned cases have been
followed by this Court in Food Corporation of India and Others v. Bhanu
Lodh and Others [(2005) 3 SCC 618] stating:
"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 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\005"
10. In Pitta Naveen Kumar and Others v. Raja Narasaiah Zangiti and
Others (2006) 10 SCC 261], this Court observed :
"The legal position obtaining in this behalf is not in
dispute. 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\005"
11. Furthermore, the Division Bench was not at all justified in directing
grant of service benefits to the respondent from the date on which the
appointed candidate at serial No.9 in the merit list ought to have joined the
post. Such a direction, in our opinion, is wholly unwarranted.
We, however, cannot set aside the impugned judgment because of the
fact that the State has appointed the respondent during the pendency of this
Special Leave Petition. We may furthermore notice that even a stay of
further proceedings in the contempt petition has been passed by this Court
by an order dated 16.05.2007. We, therefore, are of the opinion that it will
not be proper for this Court now at this juncture to set aside the said
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
appointment as the appointment granted in favour of the respondent by the
State was not by reason of his merit in the select list but by reason of the
orders of the High Court. We, therefore, in exercise of our jurisdiction
under Article 142 of the Constitution of India and keeping in view the fact
that the matter is pending for a long time, are of the opinion that a direction
should be issued that the appointment of the respondent may be directed to
be continued as if he was appointed on and from the date he joined the
service.
12. The appeal is allowed to the afore mentioned extent. Parties are left to
bear their own costs.