Full Judgment Text
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CASE NO.:
Appeal (civil) 6084 of 1998
PETITIONER:
Bihar State Electricity Board
RESPONDENT:
Suresh Prasad & Ors.
DATE OF JUDGMENT: 25/02/2004
BENCH:
CJI., V.N. KHARE & S.H. KAPADIA.
JUDGMENT:
J U D G M E N T
Kapadia, J.
The short question which arises for determination in this appeal
is:
"Whether the High Court was justified in law in giving
direction to the appellant to fill up the vacancies which
remained unfilled due to candidates not turning up to join
the post?"
FACTS:
By Employment Notice No. 3/86 advertisement was issued on
15th December, 1986 whereby 100 vacant posts of Operators and 70
vacant posts of Assistant Operators were notified for appointment. In
the said advertisement the qualification prescribed for the post of
operator was diploma in Electrical and Mechanical Engineering
having at least 70% marks. A written test was held by the Bihar State
Electricity Board for selection of candidates on 29.11.1987. The oral
interviews were held on 27-28th August, 1988. Some Assistant
Operators of Bihar State Electricity Board (Appellant herein) filed a
writ petition in the High Court bearing CWJC No. 6352/88
challenging the proposed direct recruitment in the posts of Operators
as contrary to the Standing Orders. This petition was admitted on
18.11.1989 but dismissed on 19.4.1991. However, during the
pendency of the said writ petition a Committee was constituted by the
appellant on 21.3.1991 to submit a report regarding adjustment to be
made in the matter of appointment of Operators and Assistant
Operators. On 30.1.1992, a report was submitted by the Committee
suggesting that it was not possible to absorb Assistant Operators as
Operators. Despite the said report a fresh advertisement was issued
vide Employment Notice No. 6/92 on 25.11.1992 calling for
applications from candidates to fill up 50 posts of Operators. In terms
of the said advertisement dated 25.11.1992, the earlier advertisement
dated 15.12.1986 was cancelled. The advertisement dated 25.11.1992
was challenged vide civil writ jurisdiction case No. 12820/92. By
judgment and order dated 23.3.1994, the High Court came to the
conclusion that the appellant should fill up 50% of the vacancies in
the post of Operators from amongst the candidates who had applied
pursuant to the advertisement dated 15.12.1986 and the remaining
50% of the existing vacancies in the post of Operators should be filled
from candidates who had applied pursuant to the advertisement dated
25.11.1992. In the light of the above directions of the High Court the
Appellant-Electricity Board notified the selection of 22 candidates
pursuant to advertisement No. 3/86 dated 15.12.1986 and 25
candidates against advertisement No. 6/92 dated 25.11.1992.
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However, out of 22 candidates selected for appointment vide
advertisement No. 3/86 dated 15.12.1986 only 4 joined.
Consequently 18 vacancies remained unfilled as candidates did not
turn up. Consequently respondents Nos. 1 to 7 herein (employees)
who had applied for appointment pursuant to advertisement notice No.
3/86 dated 15.12.1986 and who had qualified in the written test and
oral interviews and who were on the merit list at serial no. 23 and
downwards moved the High Court by way of CWJC Nos. 3732 and
9213/95 inter alia contending that since 18 out of 22 selected
candidates did not join the said respondents Nos. 1 to 7 should be
given appointment. This relief was granted by the High Court. Being
aggrieved the Bihar State Electricity Board came by way of present
appeal to this Court.
By judgment and order passed by the Division Bench of this
Court the civil appeal filed by the Electricity Board was allowed and
the impugned order of the High Court was set aside. Thereafter
review petition No. 1073 of 1999 was filed. By order dated
18.11.2000 the review petition was allowed and the order of the
Division Bench of this Court dated 4.12.1999 was recalled.
Consequently, the Civil Appeal No. 6084/98 has now come once
again before this Court.
ARGUMENTS
Shri Pramod Swarup, learned counsel appearing on behalf of
the appellant submitted that candidates in the merit list have no
indefeasible right to appointment even if a vacancy exists. In this
connection he placed reliance on the judgment of this Court in the
case of Shankarsan Dash Vs. Union of India [(1991(3) SCC 47].
He contended that the High Court had erred in giving direction to the
Appellant-Electricity Board to appoint respondent Nos. 1 to 7 against
18 vacancies which remained unfilled due to candidates not turning up
though they were offered appointments. He contended that out of 22
candidates selected for appointment pursuant to advertisement No.
3/86 dated 15.12.1986 18 vacancies could not be filled as the
candidates did not turn up. He submitted that in the merit list
respondents one to seven were at serial no. 23 and below. That the
Board had approved the panel of 22. That respondent Nos. 1 to 7 did
not figure in the panel. He submitted that in terms of the judgment of
the High Court given earlier dated 23.3.1994 the Appellant-Board
recommended names of successful candidates under Employment
Notice No. 3/86 and Employment Notice No. 6/92 and consequently
on selection the Board notified the panel of 22 candidates pursuant to
advertisement No. 3/86 and 25 candidates against advertisement No.
6/92. In the circumstances he submitted that the High Court by the
impugned judgment had erred in directing the Appellant-Board to
appoint respondents one to seven who were not in the panel. It was
further contended that the judgment of the Division Bench of this
Court dated 4.12.1998 was based on correct appreciation of facts and
therefore the order of recall was not warranted.
Shri Sujit K. Singh, learned counsel appearing on behalf of
respondent Nos. 1 to 7 submitted that pursuant to the advertisement
No. 3/86 respondents one to seven were put on the merit list at serial
no. 23 onwards in the descending order. He contended that when 22
posts were notified by the appellant against advertisement dated
15.12.1986 out of which 18 did not join and therefore the vacancies
could have been filled up by appointing the candidates at serial no. 23
and lower thereto. He submitted that the High Court was, therefore,
right in directing the Appellant-Board to fill up the vacancies under
advertisement No. 3/86 of 22 posts of Operators by proceeding in the
descending order from 23 and beyond. In support of his arguments,
Mr. Singh has relied upon the judgments of this Court in Jai Narain
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Ram v. State of U.P. & Ors. reported in 1996 (1) SCC 332 and
Purushottam v. Chairman, MSEB reported in 1999 (6) SCC 49.
FINDINGS:
We find merit in this appeal preferred by the Board. In the case
of Shankarsan Dash Vs. Union of India (supra) it has been held by
this Court that even if number of vacancies are notified for
appointment and even if adequate number of candidates are found fit
the successful candidates do not acquire any indefeasible right to be
appointed against existing vacancies. That ordinarily such
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. It was further held that the State is under no legal
duty to fill up all or any of the vacancies unless the relevant
recruitment rules indicate. In the present case we are not shown any
such relevant recruitment rules. In the present case pursuant to the
direction of the High Court dated 23.3.1994, the appellant took steps
for filling up 25 vacancies in the post of Operators from advertisement
No. 3/86 and the remaining 25 vacancies from advertisement No.
6/92. The results were notified on 29.4.1994 on the notice board. The
Board recommended names of successful candidates under
advertisement No. 3/86 and advertisement No. 6/92. Out of 22
candidates selected by the Board for appointment under advertisement
No. 3/86 18 candidates did not turn up. At this stage it is important to
note that respondent Nos. 1 to 7 had applied for appointment under
advertisement No. 3/86 dated 15.12.1986 and they had qualified but
they were placed at serial no. 23 onwards in the descending order. As
stated above a panel of 22 candidates was prepared for appointment
under advertisement No. 3/86 and respondent Nos. 1 to 7 fell beyond
cut off number. We are not shown any statutory recruitment rules
which require the Appellant-Board to prepare a waiting list in addition
to the panel. The argument advanced on behalf of respondent Nos. 1
to 7 was in effect that when 18 candidates failed to turn up the
appellant was bound to offer posts to candidates in the waiting list.
No such rule has been shown to us in this regard. In our view, the
judgment of this Court in the case of Shankarsan Dash Vs. Union of
India (supra) squarely applies to the facts of this case. Further there
was no infirmity in the judgment of this Court delivered on 4.12.1998
and in our view with respect there was no need to recall the said
judgment. Before concluding we may state that the judgments of this
Court in Jai Narain Ram v. State of U.P. & Ors. and Purushottam v.
Chairman, MSEB (supra) have no application to the facts of this
case.
In the result, the appeal is allowed and the impugned orders of
the High Court are set aside. Consequently, CWJC Nos. 3732/95 and
9213/95 are dismissed.
In the facts and circumstances, the parties are directed to bear
their own costs.