http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

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.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

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.