Appointment to a civil post is not an indefeasible right; the state can reduce vacancies for valid reasons.

The applicant, Sunil Srivastava, born on April 1, 1980, completed his education, including an ITI in Tractor Mechanic, and a B.A. degree by 2004.

On March 4, 2006, the North Eastern Railway (NER) requisitioned the Railway Recruitment Board (RRB) Gorakhpur for 295 vacant posts of Diesel Assistants.

The RRB advertised these 295 posts (UR-148, OBC-80, SC-43, ST-24) in the Rojgar Samachar, Newspaper, dated March 4-10, 2006, under Advertisement No. RRB/GKP/01/2006 Category No. 1.

The minimum qualification was High School or ITI Diploma, which the applicant possessed.

The applicant applied for the post as a General Category candidate by the deadline of April 5, 2006, was allotted Roll No. 19061011005515, and appeared for the written examination on October 8, 2006, and an aptitude test between February 9-14, 2007.

The applicant was called for document verification on March 21, 2007, and his documents were verified and approved.

On March 31, 2007, the RRB sent a select list, including the applicant, to the Chief Personnel Officer, Gorakhpur.

Through RTI applications, the applicant discovered that while 295 vacancies were advertised and a list of 262 successful candidates was published, only 198 candidates were given appointments by the General Manager, NER, Gorakhpur.

The Public Information Officer of the RRB informed the applicant on June 15, 2009, that a list of 262 successful candidates had been published against 295 vacancies, and on July 23, 2009, the Chief Personnel Officer, NER, stated that out of the panel of 262, only 198 were appointed.

On April 28, 2010, the Public Information Officer, RRB, stated that due to the non-availability of the C.D., they could not provide the exact marks received by the applicant.

On June 30, 2011, the Chief Personnel Officer, NER, denied receiving any select list from the RRB Gorakhpur.

The respondents argued that a panel of 262 candidates was issued, and the remaining 33 vacancies (UR-18, OBC-09, SC-05, ST-01) out of the original 295 were not filled because the department did not feel an "exigency of work," and the panel's life had lapsed.

They further stated that the applicant was not empaneled in the list of 262.

Whether the respondents' action of not filling all advertised vacancies for the post of Diesel Assistant and not appointing the applicant, despite his inclusion in the select list after completing the selection process, was arbitrary and illegal?

Whether the applicant had an indefeasible right to be appointed to the post of Diesel Assistant merely because he was declared selected by the RRB and his name appeared in the original select list?

Whether the respondents' inability to produce the applicant's exact marks due to the loss of the C.D. justified their decision not to appoint him?

The court applied the principles of fair and non-arbitrary action by instrumentalities of the State as enshrined in Articles 14 and 16 of the Constitution of India.

It referenced the Supreme Court's decisions in *Shankarsan Dash v. Union of India* (1991) 3 SCC 47, which held that selected candidates do not acquire an indefeasible right to appointment and the State is not under a legal duty to fill all vacancies unless recruitment rules indicate otherwise, but the decision not to fill them must be *bona fide* and for appropriate reasons, respecting comparative merit if vacancies are filled.

The court also cited *Sandeep Singh v. State of Haryana* (2002) 10 SCC 549, which suggested that available vacancies should be filled from the same examination unless there is a statutory embargo.

Additionally, the court considered *Dinesh Kumar Kashyap & Ors. v. South East Central Railway & Ors.* (Civil Appeal No. 11360-11363 of 2018), emphasizing that while selection does not create a vested right, employers must provide cogent reasons for not appointing selected candidates, especially when many posts are vacant.

The employment notice's clause 2.3, which stated that the number of vacancies was provisional and could be increased or decreased, and clause 6.7, which clarified that selection by RRB does not confer any right to the candidate for the post, were also considered.

The Railway Board letter No. E(RRB)/2001/25/26 dated March 15, 2002 (RBE No. 35/2002), which stipulates a maximum life of two years for a panel and its lapse upon the declaration of a new result for the same category/post, was also invoked.

The court analyzed that while the applicant was called for document verification after the written and aptitude tests, the terms of the Employment Notice No. RRB/GKP/01/2006 clearly stated that vacancies were provisional and could be altered.

Moreover, the call letter for document verification explicitly mentioned that it did not confer any right to appointment.

The respondents, particularly the Chief Personnel Officer, NER, Gorakhpur, stated that a panel of 262 candidates was received, and only 198 were appointed, with the remaining 64 candidates either not turning up for medical examination or being declared unfit.

The crucial point was that the remaining 33 vacancies were not filled due to a lack of "exigency of work".

The court noted that the applicant's name was not included in the panel of 262 candidates sent to NER, indicating his merit position was below the cut-off.

The respondents also legitimately argued that the panel's life, as per Railway Board instructions, was one year, extendable to two, and had long lapsed, especially since new panels for the same category had been issued.

Although the C.D. containing the applicant's marks was lost, the court concluded that even if available, the lapse of the panel and the applicant's non-inclusion in the final panel of 262 successful candidates meant no recruitment decision could be taken at that stage.

The reliance on *Dinesh Kumar Kashyap* was deemed "out of place" as that case involved a "replacement list" of extra 20% candidates, a provision not present here.

Applying *Shankarsan Dash*, the court affirmed that the State's decision to not fill all vacancies must be bona fide, and here, the RRB had reserved the right to alter vacancies, which is a normal practice.

The respondents were not found to have acted arbitrarily or illegally in reducing the vacancies before finalizing appointments or in not appointing the applicant, as he did not appear in the final panel.

The court held that the department was not guilty of arbitrariness or illegality in not issuing an appointment letter to the applicant.

This was because the vacancies were provisional, the applicant was not included in the final panel of 262 candidates sent to NER, inferring his merit position was lower than the last selected candidate, and the life of the selection panel had expired.

Therefore, the applicant had no indefeasible right to appointment.