http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (civil)  5368 of 2007

PETITIONER: Dir. S.C.T.I. for Med. Sci. & Tech. & Anr.

RESPONDENT: M. Pushkaran

DATE OF JUDGMENT: 23/11/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T  [Arising out of  SLP (Civil) No. 6619 of 2007] S.B. SINHA, J :          1.      Leave granted.  2.     A short question which arises for consideration in this appeal is as to  whether the respondent herein had any legal right for being appointed  against the post of three security guards advertised by the appellant \026  institute.   3.      The basic fact of the matter is not in dispute.  An advertisement was  issued for appointment to the post of security guards.  There were three  permanent posts.  The select list contained names of five candidates.  The  name of the respondent appeared at Sl. No. 4 therein.  It was finalized on  11.04.2005.  It had a validity period of one year i.e. upto 10.04.2006.   Whereas two candidates were offered appointments on 13.04.2005 and  5.05.2005, the third candidate was offered appointment on 13.06.2005.  He  declined the same.  Respondent, however, for reasons best known to the  appellant, was not offered any appointment.  He filed a writ petition  questioning his non-appointment on 12.12.2005. 4.      On or about 13.07.2005, however, a purported policy decision was  taken to contract out some of the services in a phased manner to make the  administration efficient and cost effective in the following terms: \023After detailed deliberations, it was resolved that  (i) a copy of the request sent to the Employment  Exchange, Thiruvananthapuram may  simultaneously be circulated/ posted by the  Institute to all the Employment Exchanges in  Kerala especially in case of direct recruitment of  Group \026 D posts specifying the number of  candidates to be sponsored for each post so as to  achieve a wider coverage; (ii) in the case of Group  C and B Direct recruitment posts, paper  advertisement shall, continue to be resorted in one  or two leading newspapers and (iii) for temporary  vacancies/ leave vacancies of Cleaning Attendants/  Security Guards, the external contract system  prevalent in BMT Wing may be extended to the  Hospital Wing also in a phased manner.\024

5.      A resolution was adopted by the Governing Body in a meeting held at  the Institute on 29.12.2005 in the following terms: \023We have been deliberating for quite sometime on  contracting out some of the services on a phased  manner to make it more efficient and cost  effective.  It is noted that the security at BMT  Wing, Poojappura that was contracted out on a  trial basis has been found successful.

It was noted that at present there are 2 permanent

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

vacancies of Security Guards and 2 permanent  posts of Drivers that are lying vacant.

It was resolved to abolish these vacant posts and  services may be contracted out/ hired and ratify the  decision of the Director not to fill the two vacant  posts of Security Guards and Drivers on permanent  basis.\024

6.      A learned Single Judge of the High Court by a judgment and order  dated 20.09.2006 inter alia opined: \0235. I do not think that the petitioner has made out a  case for interference.  No doubt, the petitioner  approached this Court on 12.12.2005.  Ext. R1(b)  decision is dated 29.12.2005.  But, I do not think  that that is sufficient to overturn the decision of the  management.  The question as to which are the  posts to be filled up, is all a management decision.   Ordinarily, it is not for this Court to veto the  wisdom of the employer in regard to the posts  which are to be retained and posts which are to be  abolished.  A decision to abolish a post cannot be  attacked by a person figuring in a rank list, unless,  no doubt, an extraordinarily case of malice or per  se arbitrary action is established.  Apparently, the  respondents felt that the post need not be retained,  having regard to the advantages that would flow  from contracting of these services as also the  pecuniary loss that would otherwise flow.  It is  hard to characterize such a decision as arbitrary, as  sought to be shown in the Reply Affidavit.  It is  settled law that a person in the rank list has no  legal right to command the employer to appoint  him.  This is not a case where after having taken a  decision to fill up the posts, the respondent is not  offering appointment to the petitioner.  Ext. R1(b)  is not challenged by petitioner.  In such  circumstances, the Writ petition fails and it is  dismissed.\024

7.      On an intra-court appeal preferred by the respondent herein from the  said judgment and order, the Division Bench, however, reversed the same,  inter alia, holding: \023\005If the vacancy was abolished necessarily there  was no question of appointment either on  substantial or on temporary basis.  There is a  decision to fill it up on temporary basis.  Thus,  contract appointment reveal the existence of the  vacancy.  The 3rd among the vacancies notified  was one really intended to be filled up even on  13.6.2005 when the 3rd rank holder in the list had  been offered appointment.  The decision contained  in Ext. R1(b) is the decision taken by the  Governing Body.  The petitioner/ appellant need  not challenge the decision taken by the  Government Body, when there is no decision in  Ext. R1(b) to abolish the post but only to fill up the  permanent posts on contract basis.  Then, the next  person included in the list for regular appointment  has to be considered\005\024

8.      Appellants are, thus, before us: 9.      Mr. L. Nageshwara Rao, learned senior counsel appearing on behalf  of the appellants, submitted that the Division Bench of the High Court  committed a serious error in holding that there was a vacancy on a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

temporary basis.         It was urged that keeping in view a number of decisions of this Court,  the impugned judgment is wholly unsustainable.  Reliance in this behalf has  been placed on Shankarasan Dash v. Union of India [(1991) 3 SCC 47],  State of Bihar and Others v. Md. Kalimuddin and Others [(1996) 2 SCC 7]  and Punjab State Electricity Board and Others v. Malkiat Singh[(2005) 9  SCC 22]. 10.     Mr. P.S. Narasimha, learned counsel appearing on behalf of the  respondent, on the other hand, would submit that the institution had four  departments.  In some of the departments a policy decision to contract out  the services was taken; but, so far as the department in which the respondent  was to be appointed, no policy decision had been adopted for contracting out  the job of the security persons and in that view of the matter the respondent  had a legitimate expectation of his being appointed.

11.     The law operating in the field in this behalf is neither in doubt nor in  dispute.  Only because the name of a person appears in the select list, the  same by itself may not be a ground for offering him an appointment.  A  person in the select list does not have any legal right in this behalf.           The selectees do not have any legal right of appointment subject, inter  alia, to bona fide action on the part of the State.  We may notice some of the  precedents operating in the field. 12.     In Shankarsan Dash v. Union of India [(1991) 3 SCC 47], this Court  held: \0237 . 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. 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. Subhash  Chander Marwaha, Neelima Shangla v. State of  Haryana, or Jatendra Kumar v. State of Punjab.\024

13.     Yet again in R.S. Mittal v. Union of India [1995 Supp (2) SCC 230],  this Court held: \023It is no doubt correct that a person on the select  panel has no vested right to be appointed to the  post for which he has been selected. He has a right  to be considered for appointment. But at the same  time, the appointing authority cannot ignore the  select panel or decline to make the appointment on  its whims. When a person has been selected by the  Selection Board and there is a vacancy which can  be offered to him, keeping in view his merit  position, then, ordinarily, there is no justification  to ignore him for appointment. There has to be a  justifiable reason to decline to appoint a person  who is on the select panel. In the present case,  there has been a mere inaction on the part of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

Government. No reason whatsoever, not to talk of  a justifiable reason, was given as to why the  appointments were not offered to the candidates  expeditiously and in accordance with law. The  appointment should have been offered to Mr  Murgad within a reasonable time of availability of  the vacancy and thereafter to the n ext candidate.  The Central Government\022s approach in this case  was wholly unjustified.\024 (Emphasis supplied)

14.     In Asha Kaul (Mrs.) and Another v. State of Jammu and Kashmir  [(1993) 2 SCC 573], this Court held: \0238. It is true that mere inclusion in the select list  does not confer upon the candidates included  therein an indefeasible right to appointment (State  of Haryana v. Subhash Chander Marwaha; Mani  Subrat Jain v. State of Haryana; State of Kerala v.  A. Lakshmikutty) but that is only one aspect of the  matter. The other aspect is the obligation of the  Government to act fairly. The whole exercise  cannot be reduced to a farce. Having sent a  requisition/request to the Commission to select a  particular number of candidates for a particular  category, \027 in pursuance of which the  Commission issues a notification, holds a written  test, conducts interviews, prepares a select list and  then communicates to the Government \027 the  Government cannot quietly and without good and  valid reasons nullify the whole exercise and tell the  candidates when they complain that they have no  legal right to appointment. We do not think that  any Government can adopt such a stand with any  justification today\005\024

       {[See also A.P. Aggarwal v. Govt. of NCT of Delhi and Another  [(2000) 1 SCC 600]}.

15.     In Food Corpn. Of India and Others v. Bhanu Lodh and Others  [(2005) 3 SCC 618], this Court held: \02314. 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.\024  

16.     It is, therefore, evident that whereas the selectee as such has no legal  right and the superior court in exercise of its power of judicial review would  not ordinarily direct issuance of any writ in absence of any pleading and  proof of mala fide or arbitrariness on the part of the employer.  Each case,  therefore, must be considered on its own merit. 17.     In All India SC & ST Employees\022 Association and Another v. A.  Arthur Jeen and Others [(2001) 6 SCC 380], it was opined: \02310. Merely because the names of the candidates

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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.  

       [See also Malkiat Singh (supra), Pitta Naveen Kumar and Others v.  Raja Narasaiah Zangiti and Others (2006) 10 SCC 261, State of Rajasthan &  Ors. V. Jagdish Chopra 2007 (10) SCALE 470, Union of India & Others v.  S. Vinodh Kumar & Others, 2007 (11) SCALE 257 and State of M.P. & Ors.  v. Sanjay Kumar Pathak & Ors. 2007 (12) SCALE 72] 18.     The application of law would, therefore, depend upon the fact  situation obtaining in each case.  The judgment of the High Court in view of  the aforementioned authoritative pronouncements cannot be said to be  perverse.  The respondent was to be offered with the appointment at a point  of time when no policy decision was taken.  There was, thus, no reason not  to offer any appointment in his favour.  Why the select panel was ignored  has not been explained.  Even the purported policy decision was not in their  contemplation.  We, therefore, do not see any reason to interfere with the  impugned judgment. 19.     Furthermore, the respondent is an ex-serviceman.  He in ordinary case  should have been offered appointment particularly when three posts were  vacant.  The decision to abolish posts was not taken at a point of time when  he had filed the writ petition.  It was expected that on 16.06.2005 when the  third candidate refused to join the post, he should have been offered the  same.   20.     The policy decision to abolish the posts as also contracting out the  security services was taken by the appellant much thereafter, viz., on or  about 29.12.2005.  We are, therefore, of the opinion that it is not a fit case  where we should interfere with the impugned judgment.  The appeal is  dismissed.  No costs.