DINESH KUMAR KASHYAP vs. SOUTH EAST CENTRAL RAILWAY

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 11360-11363 OF 2018 (Arising out of S.L.P (C) NOS. 29668-29671 OF 2017) Dinesh Kumar Kashyap & Ors. etc. ........Appellants Versus South East Central Railway & Ors. etc. ........Respondents WITH C.A.NO. 11364 of 2018 (Arising out of S.L.P (C) No. 6165 of 2018) J U D G M E N T Hemant Gupta, J. I have gone through the Judgment authored by my learned brother Justice Deepak Gupta. Respectfully, I am not able to agree with the views expressed therein. My views are given hereunder: 12 2. The appellants are aspirants for appointment to the Group-D posts for which an advertisement was issued by the South East Central Railways for 5540 General category posts on 15.12.2010. The advertisement contemplated that 20% of the candidates would be called for documents verification as the extra candidates in terms of the instructions issued by the Railway Board on 02.07.2008 for placing the candidates in the extra list. The relevant conditions contained in the aforesaid circular read as under: “3. The issue has been examined and it has now been decided by the Board that the number of candidates called for document verification shall be 20% over and above the number of vacancies. 4. This shall, however, be done with the following proviso. (i) It has to be brought out clearly in the Call Letter to the candidate that the purpose of calling 20% candidates over and above the number of vacancies at the time of document verification is primarily to avoid shortfall in the panel and that merely calling a candidate for document verification does not, in any way, entitle him/her to an appointment in the railways. (ii) Even where the number of candidates available after document verification exceeds the number of vacancies, the panel finalized by RRC (Railway Recruitment Cell) shall be equal to number of vacancies only. In case, the Railway Administration after giving stipulated 13 joining time to the selected candidates, certifies that certain number of candidates have not turned up within the specified period, another panel equal to the number of candidates finally not turning up for taking appointment will be supplied by RRC. Before calling for replacement in-lieu of the candidates finally not turning up for taking appointment CPO shall personally satisfy himself that the procedure for cancellation of the offer of appointment to the originally empanelled candidates has been strictly followed. Under no circumstances, the number of candidates covered in the original as well as replacement panels shall exceed the number of the vacancies indented by the railway; and (iii) Replacement panels shall include only such number of reserved/un-reserved candidates as have not turned up as per original panel.” (emphasis supplied) 3. The process of appointment particularly in respect of extra candidates has been revised when Railway Board issued a circular No.6/RBE/2014 dated 10.01.2014. The said circular has done away with the procedure of replacing candidates as contemplated in the earlier circular dated 02.07.2008. 4. As per the information contained in Annexure P-2, as many as 509775 applications were received in response to the advertisement issued on 15.12.2010 and out of which 162229 candidates appeared for the written test. After 14 qualifying the written test, 10380 general candidates were called for physical efficiency test. Since the appellants are general category candidates, number of the candidates from the other categories called for physical efficiency test is not mentioned in the affidavit. The cut off marks in the written test was 40%. As many as 7697 general category candidates qualified in the physical efficiency test. The percentage of cut off marks obtained for document verification in respect of the general category is 40.98%. The appointments against the posts advertised were made on 11.3.2013; 9.7.2013 and in March 2014. 5. The appellants, who were not appointed against the Group-D posts against the aforesaid advertisement process, filed Original Applications under section 19 of the Administrative Tribunal Act, 1985 before the Central Administrative Tribunal, Jabalpur in the year 2014. 6. Such nine connected Original applications were dismissed by the Tribunal on 13.02.2015 inter-alia, holding as under: “The right of candidates in 20% extra list begins only after a demand is made for replacement panel to Railway Recruitment 15 Cell after duly following aforesaid procedure. The procedure for working out requirement of replacement panel is not part of either the employment notification or selection procedure. The right of applicants for consideration starts only after certain appointment orders of originally empanelled candidates are cancelled and thereafter a demand is raised for replacement panel. Since no demand has been made in view of the procedure specified in notification dated 2.07.2008 (Annexure R-4) no right for consideration of the applicants has either acquiesced or been infringed.” 7. The Writ Petition filed by the appellants before Chhattisgarh High Court remained unsuccessful vide judgment dated 05.08.2015. The Court held as under: “The only question for our consideration is that if the appellants were not in the original list of selected candidates on higher merit and were to be considered against non- joining vacancies or medical disqualification of selected candidates, then the procedure prescribed in the Railway Board’s letter 02.07.2008 was required to be followed by preparation of a replacement panel. The Tribunal has arrived at a finding of fact that no process for initiation of the procedure under letter dated 02.07.2008 was ever commenced by the Respondents to fill up non-joining vacancies from any replacement panel. A candidate outside and beyond the merit list, has no vested legal right to such appointment as a matter of right because vacancies may exist. We do not find any reason to differ with the conclusions arrived at by the Tribunal”. 16 8. Before this Court, learned counsel for the appellants relies upon the judgment reported as R.S. Mittal v. Union of India, 1995 Supp (2) SCC 230, to contend that though the appellants have no vested right to seek appointment but the respondents cannot act in arbitrary manner to deny the benefit of right of appointment as the State has to act in a non-discriminatory and non-arbitrary manner. Therefore, the denial of appointment to the appellants is not sustainable. It is also argued that out of 5540 posts in the general category as many as 624 posts have remained unfilled. Therefore, such posts could be very well filled up by the candidates who are in the category of replacement candidates (extra list) such as the appellants. 9. In the counter affidavit, it has been pointed out that two separate appointment processes were also initiated, one on 25.08.2012 to fill up 2017 posts of the general category and another on 14.12.2013 to fill up 1195 general category posts. In the said selection processes, 2839 candidates have been empanelled as against 3212 posts advertised. Such candidates have already joined. It 17 is also averred that three recruitment cycles i.e. one in respect of which appellants were the candidates and the two other recruitment processes were almost running concurrently. It is inter-alia, mentioned in the counter affidavit as under: “iii. In the instant case Replacement Panels were not issued primarily as there was no demand for issue of Replacement Panels from the Divisions/Units. While the Recruitment process to the Employment Notification No. SECR/02/2010 was underway, with the approval of Railway Board, two more Notifications under No. SECR/03/2012 dated 25.08.2012 for 2215 (198 Physically Handicapped + 2017 Non-PH) posts and SECR/04/2013 dated 14.12.2013 for 1206 (11 Physically Handicapped + 1195 Non-PH) posts were issue. iv. Against the above two Employment Notifications, SECR/03/2012 dated 25.08.2012 and SECR/04/2013 dated 14.12.2013, 1977 and 862 Non-PH candidates have been empanelled respectively. As such a total of 2839 Non-PH candidates have been empanelled against two subsequent cycles of Employment Notifications. v. Regarding the claim of the appellants and similarly placed candidates (who are candidates falling in 20% extra candidates zone against employment Notification No. SECR/02/2010) for issue of replacement panels against around 600 candidates who did not join, it is submitted that the effect of non-joining of 600 odd candidates was not felt since in a short time margin 2839 Non-PH 18 candidates were empanelled and the panels were supplemented to the Divisions/Units. vii. Hence it goes without saying that the 2839 empanelled candidates against two subsequent employment notifications SECR/03/2012 and SECR/04/2013, are far superior in merit as compared to the appellants who are candidates falling in 20% extra zone against employment notification No. SECR/02/2010. viii. As mentioned above two more cycles of recruitments were going on parallel to the Employment Notification No. SECR/02/2010, the necessity of replacement panels was not felt and not asked for as such.” 10. In this factual basis, firstly, it needs to be examined as to what is the status of the appellants who were called for document verification over and above the number of posts advertised. The circular dated 02.07.2008 is to the effect that 20% candidates are to be called to avoid the shortfall in the panel and that merely calling a candidate for document verification does not, in any way, entitle him/her to an appointment in the railways. It is also contemplated that replacement panel shall include only such number of reserved / unreserved candidates as have not turned up as per original panel. Therefore, the 20% extra candidates were called to substitute the candidates 19 who do not report within the joining time granted to the selected candidates. Such candidates at best can be said to be the candidates in the waiting list of the candidates to be called for appointment if the selected candidates do not join for one or the other reason. 11. The next question is as to whether a candidate acquires any right to appointment being in the merit list. Such question has been examined in number of judgments time and again by this Court. In a judgment reported as State of Haryana v. Subash Chander Marwaha , (1974) 3 SCC 220, it has been held that the State has a right not to appoint a candidate even if his name appears in the merit list. The Court held as under: - “ 7. In the present case it appears that about 40 candidates had passed the examination with the minimum score of 45%. Their names were published in the Government Gazette as required by Rule 10(1) already referred to. It is not disputed that the mere entry in this list of the name of candidate does not give him the right to be appointed. The advertisement that there are 15 vacancies to be filled does not also give him a right to be appointed. It may happen that the Government for financial or other administrative reasons may not fill up any vacancies. In such a case the candidates, 20 even the first in the list, will not have a right to be appointed. The list is merely to help the State Government in making the appointments showing which candidates have the minimum qualifications under the Rules. The stage for selection for appointment comes thereafter, and it is not disputed that under the Constitution it is the State Government alone which can make the ..” appointments. … 12. In a Judgment reported as Jatinder Kumar v. State

process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus. The Court held as under: - “ 12. …... This, however, does not clothe the appellants with any such right. They cannot claim as of right that the Government must accept the recommendation of the Commission. If, however, the vacancy is to be filled up, the Government has to make appointment strictly adhering to the order of merit as recommended by the Public Service Commission. It cannot disturb the order of merit according to its own sweet will except for other good reasons viz. bad conduct or character. The Government also cannot appoint a person whose name does not appear in the list. But it is open to the Government to decide how many appointments will be made. The process for 21 selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus. We are supported in our view by the two earlier decisions of this Court in A.N. D'Silva v. Union of India AIR 1962 SC 1130 and State of Haryana v. Subash Chander Marwaha (1974) 3 SCC 220. The contention of Mr Anthony to the contrary cannot be accepted.” 13. In Shankarsan Dash v. Union of India , (1991) 3 SCC 47, a Constitution Bench of this Court held that the notification for an appointment 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. It was held as 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 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 22 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, Neelima Shangla v. State of Haryana (1986) 4 SCC 268, or Jatindra Kumar v. State of Punjab (1985)1 SCC 122“. 14. In a Judgment reported as S.S. Balu v. State of

employer has a right to fill up all the posts or not to fill them up. A candidate will have no legal right for claiming a writ in the nature of mandamus unless there is discrimination or arbitrariness in regard to the filling up of : the vacancies. The Court held as under “12. 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 v. Raja Narasaiah Zangiti [(2006) 10 SCC 261. 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 candidate concerned will have no legal right for obtaining a writ of or in the nature of mandamus. (See Batiarani Gramiya 23 Bank v. Pallab Kumar (2004) 9 SCC 100. In Shankarsan Dash v. Union of India (1991) 3 SCC 47 a Constitution Bench of 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 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.” * 14. In Pitta Naveen Kumar v. Raja Narasaiah Zangiti [(2006) 10 SCC 261, this Court held: (SCC p. 273, para 32) “32. … 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 24 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 .” 15. In another judgment reported in Kulwinder Pal Singh Vs. State of Punjab , (2016) 6 SCC 532, this Court held that t he name of a candidate may appear in the merit list but he has no indefeasible right to seek an appointment. It was held as under:

“14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. 25

16. The stand of the Railways before the Tribunal was that the 20% extra candidates were called to take care for eventualities such as the unfitness of the candidates at 26 the stage of medical examination or not turning up of the candidates for document verification etc. It is also averred that in spite of vacancies remaining unfilled due to non- joining of selected candidates, no appointment from the extra candidates can be claimed in view of the instructions of the Railway Board. The stand of Railways in reply before the Tribunal was not that there was simultaneous selection process for Group-D posts and for which 2839 candidates were appointed but the fact remains that such an averment has been made before this Court and such an assertion has not been controverted. 17. The judgment in R.S.Mittal case (supra) deals with appointment of members of the Income Tax Appellate Tribunal by a Selection Committee chaired by a Judge of this Court. The Central Government has not passed any order on the recommendation of such Selection Committee. The said Judgment has been explained in another judgment reported as Union of India v. Kali

27 their contentions. In our view, the said authority hardly advances their case. In the first place, all that the authority says is that where a Selection Board headed by a sitting Judge of the Supreme Court had recommended certain candidates for appointment as members of ITAT, it was not open to the Government of India to sit on the said recommendation without taking action. That was not a case where a decision taken not to appoint a candidate for good reason was concurred in by the Chief Justice of India.” 18. However, in the present case, the appellants were called in for the verification of documents as extra candidates to replace the candidates selected who do not join for one or the other reason. Such candidates were called to meet out the necessity to fill up of posts if the meritorious selected candidates do not join. In terms of Shankarsan Dash case (supra), the State has a right not to appoint candidates even if they are in merit list. The appellants do not possess indefeasible right of appointment. It is not the case, that any candidate lower in merit has been appointed or the appointments have been made by pick and choose method ignoring merit. The reason given by the Railways in the counter affidavit 28 is that the requirement to fill 624 posts was not felt in pursuance of an advertisement in question as there was two simultaneous selection processes in which 2839 candidates were appointed. Such reason cannot be said to be wholly arbitrary which warrant a mandate to the respondents to appoint the appellants who are not in merit list but at best in the waiting list. The State has right not to fill up any vacancy advertised. The stand that the requirement to fill up 624 vacant posts was not felt cannot be said to be arbitrary warranting a mandamus to appoint the appellants. The State cannot be directed to appoint candidates, when it does not require the posts to be filled up. The decision not to fill up vacancies has been taken for appropriate reasons and is neither arbitrary nor discriminatory. 19. Still further, in exercise of power of Judicial Review, this Court is not to substitute the decision of the Railways and to direct candidates in the waiting list to be appointed. In three Judge Bench judgment reported as

mere inclusion of a candidate's name in the selection list 29 gave him no right, and if there was no right, there could be no occasion to maintain a writ petition for enforcement of a non-existing right. It has been also held that however vide the power of judicial review under Article 226 or 32 of the Constitution, there is self-recognised limit to exercise such power. The Court held as under: - “ 15. In this matter, the approach adopted by the Jharkhand High Court commends itself to us. The Jharkhand High Court approached the matter on the principle that judicial review is not available in such a matter. The Jharkhand High Court also rightly pointed out that mere inclusion of a candidate's name in the selection list gave him no right, and if there was no right, there could be no occasion to maintain a writ petition for enforcement of a non-existing right.

17. In K. Ashok Reddy v. Govt. of India (1994) 2 SCC 303, this Court indicated that however wide the power of judicial review under Article 226 or 32 there is a recognised limit, albeit self-recognised, to the exercise of such power. This Court reiterated a passage from Craig's Administrative Law (2nd Edn., p. 291), vide SCC p. 315, para 21, as under: “The traditional position was that the courts would control the existence and extent of prerogative power, but not the manner of exercise thereof. … The traditional position has however now been modified by the decision in GCHQ 30 case [Council of Civil Service Unions v. Minister for the Civil Service, 1985 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174 (HL)] . Their Lordships emphasised that the reviewability of discretionary power should be dependent upon the subject-matter thereof, and not whether its source was statute or the prerogative. Certain exercises of prerogative power would, because of their subject-matter, be less justiciable, with Lord Roskill compiling the broadest list of such forbidden territory….” The observations of Lord Roskill, referred to above, are from Council of Civil Service Unions v. Minister for the Civil Service 1985 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174 (HL)] (GCHQ case) as under: (All ER p. 956d-e) “But I do not think that that right of challenge can be unqualified. It must, I think, depend on the subject-matter of the prerogative power which is exercised. Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject-matter is such as not to be amenable to the judicial process.” 31 18. Finally, this Court emphasised judicial restraint by citing with approval a passage in de Smith's Judicial Review of Administrative Action (vide SCC p. 316, para 23) as under:

20. Further in the written submissions submitted on behalf of the respondents, reliance is placed on the 32 circular dated 18.07.2005 to say that the currency of the panel published in the month of March, 2014 is for a period of two years. Such period can be extended by the General Manager by one year in case of administrative exigencies. 21. Somewhat similar question was considered in a nd recent Judgment dated 22 November, 2018 of this Court in Civil Appeal No. 11149 of 2018 entitled Uttar Pradesh Public Service Commission v. Surender Kumar & Ors. , whereby the Government Order contemplated that the wait-list can be operated only for a period of one year, deciding the said aspect, the Court held as under: “12. Having heard the learned counsels on both sides, we have perused the order dated 18.05.2018 passed by the High Court and other material placed on record. For the purpose of operating wait-list, Government of Uttar Pradesh has issued instructions from time to time. It is clear from the various Government Orders that wait-list period is valid only for a period of one year. Though requisition is made for making selection for 178 number of posts, but appellant Commission, after delcaring results of the examination, has made initial recommendation for substantive number of posts, i.e., 156 posts vide letter dated 12.08.2010. It appears that the said list is prepared by including candidates who have submitted all the requisite documents within the period prescribed. Further recommendations were also made, but there is no reason for not computing the period of one year from 12.08.2010. When recommendations 33 were made for substantive number of posts on 12.08.2010, we are of the view that period of one year for operating wait-list is to be computed from 12.08.2010 but not from the last recommendation made for one post, vide letter dated 28.08.2012. The reason for restricting 156 names in the initial recommendation vide letter dated 12.08.2010, is explained in paragraph 11 of the counter affidavit filed before the High Court”. 22. Since the validity of the select panel has come to an end on the afflux of time, therefore, there cannot be any order to appoint the persons from such select list prepared wayback in the year 2014 in pursuance to the advertisement issued on 15.12.2010. Such panel cannot be a perennial source of appointment. 23. Thus, in exercise of power of judicial review, I do not find any reason to interfere in the decision-making process of the Railways, so as not to appoint the appellants against Group D posts advertised on 15.12.2010. 24. Consequently, I do not find any illegality in the order passed by the Tribunal and the High Court. The appeals are accordingly dismissed. No Costs. .............................J. (HEMANT GUPTA) New Delhi, November 27, 2018. 34