REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    388            OF 2009 [Arising out of SLP (Civil) No. 10570 of 2006]

Girdhar Kumar Dadhich and another …. Appellants

Versus

State of Rajasthan and others …. Respondents

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. Interpretation of a decision of this Court in Kailash Chand Sharma  v.

State of Rajasthan and  others, [ (2002) 6 SCC 562 ] is in question in this

appeal which arises out of a judgment and order dated 14th February, 2006

passed by the High Court of Judicature of Rajasthan. Jaipur Bench, Jaipur in

D.B. Civil Special Appeal (W) No. 147 of 2006.

3. Indisputably  an  advertisement  was  issued  on  9th August,  1998  for

filling  up  10  posts  of  Physical  Education  Teacher  Grade-III.   10  Bonus

marks were to be granted for candidates who were resident of a particular

district, while 5 bonus marks to the candidates belonging to rural areas.   

4. Validity and/or legality of the said provision for grant of bonus marks

was questioned before the said High Court by filing writ petition in the year

1999.   The question was referred to a Full Bench.  A Full Bench of the said

Court  by a judgment and order dated 18th November, 1999 held the said

provision to be unconstitutional.   

5. Upon declaration of the said law by the Full Bench of the High Court,

appellants  herein  filed  two  writ  petitions  being  No.  1818/2001  and

1802/2001 before the said High Court inter alia contending that in view of

the said Full Bench decision, their position would be at serial Nos. 6 and 9

in the merit list.  The said writ petitions remained pending.   

6. This Court in Kailash Chand Sharma (supra)  while  upholding  the

decision of the Full Bench to the effect that grant of such bonus marks was

unconstitutional,  in  exercise  of  its  jurisdiction  under  Article  142  of  the

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Constitution  of  India,  thought it  fit  and proper to invoke the doctrine  of

prospective over-ruling, stating :

“ The  appointments  made  up  to  17.11.1999 need not be reopened and reconsidered in the light of the law laid down in this judgment”.   

7. Allegedly  the  State  of  Rajasthan  appointed  Bhanwar  Lal  Gosar

(Mothsar) by an order dated 12th June, 2003.  Two writ petitions were filed

by the appellants.  However, in the meanwhile one Duli Chand had filed a

writ application being S.B. Civil Writ Petition No.1401 of 2003 before the

High Court.  A learned Single Judge of the High Court dismissed the said

writ  petition on 17th February, 2003 opining that the same was barred by

delay and  latches.     Following  Duli  Chand  (supra)  the  appellants’  writ

applications  (Civil  Writ  Petition  Nos.  5510/2003;  1818/2001  and

1802/2002)  were  also  dismissed  by the  same learned  Judge  by an  order

dated 5th December, 2003.   

8. Aggrieved by and dissatisfied therewith, the appellants filed an intra-

court appeal being D.B. Special Appeal (W) No. 103 of 2004 which was

disposed of by a Division Bench of the High Court  giving liberty to the

appellants to make a representation to the concerned authority within ten

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days with a direction to the authority to dispose of the same within three

months thereafter.

9. Appellants submitted their representations on 10th July, 2005 which

were rejected by the respondents by an order dated 30th September, 2005.   

10. Appellants challenged the said order before the High Court by filing

yet another writ application being S.B. Civil Writ Petition No.9253 of 2005,

which was dismissed by a learned Single Judge of the said Court following

the order passed in Duli Chand (supra).  

11. Appellants preferred an intra court appeal thereagainst.  A Division

Bench of the High Court, however, by reason of the impugned judgment

and order  refused to interfere in the matter on the premise that  the issue

stands  squarely covered  by the  decision  of  this  Court  in  Kailash  Chand

Sharma (supra).   

12. Mr.  M.R. Calla,  learned senior  counsel  appearing  on behalf  of  the

appellants, would submit :-

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(i) The Division Bench of the High Court misread and misinterpreted

the decision of this Court in Kailash Chand Sharma (supra) in so

far as it failed to take into consideration that the same covered the

cases of only those employees who were appointed on or before

18th November, 1999.   

(ii) Bhanwar Lal Mothsar having been appointed only in the year 2003

against the vacancy which remained to be filled up, Kailash Chand

Sharma (supra) cannot be said to have any application whatsoever.

(iii) The contention of the respondents that two vacancies filled in the

year 2003 – one against  the OBC quota and another against the

general quota by the persons who were placed higher in the select

list than the appellants was valid in law, cannot be accepted as the

respondents had already appointed four persons against the OBC

quota in the year 1999 itself.

(iv) As  a  vacancy  still  exists,  even  without  disturbing  the  existing

appointees, the appellant(s) can be accommodated.     

13. Mr.  Navin  Singh,  learned  counsel  appearing  on  behalf  of  the

respondents, on the other hand, would contend:

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(i) Contention raised by the appellants having not been raised before

the High Court, the same should not be allowed to be raised for

the first time before this Court.

(ii) Appellants  having  not  filed  any writ  petition  in  the  year  1998-

1999  the  High Court  had  rightly  dismissed  the  writ  petition  as

being barred by delay and latches.   

(iii) Appointments  having  been  made  on  the  vacant  posts  only  in

relation to the candidates of the reserved category and/or who had

obtained  higher  position  in  the  select  list,  appellants  cannot  be

directed to be appointed at this stage.   

14. Before adverting to the rival contentions raised by the parties we may

notice that according to the appellants even today their exists two vacancies.

The  purported  chart  prepared  by  the  appellants  and  the  records  placed

before us show some discrepancy.  At this stage, thus, it is not possible for

us to go into the details  thereof particularly when the candidates already

appointed are not parties before us.

15. The select list was prepared in the year 1998.  In our opinion it would

be difficult to issue any direction for appointment of the appellants herein at

this  stage.   Select  list  was  prepared  keeping  in  view  the  rules  as  they

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existed.   The  said  Rules  might  have  been  declared  ultra  vires  but  as

indicated hereinbefore this Court in exercise of its jurisdiction under Article

142 of the Constitution of India though it fit  to give a prospective effect

thereto. It did so inter alia for the purpose of protecting the services of those

teachers who had already been appointed and had been in service for a few

years.  Out of ten posts, eights teachers were appointed on or before 18th

November, 1999 which was the cut off date.   

16. Indisputably the merit  list  was  modified  in  terms of  the dicta  laid

down by this Court in Kailash Chand Sharma (supra).   

17. The  question  as  to  whether  the  fresh  appointees  who  are,  having

regard to the said modification, required to be appointed on the premise that

they are placed higher in the select list  than the appellants or not, in our

opinion, cannot be gone into by us for the first time since such a contention

had never  been  raised  before  the  High  Court.   The  entire  record  of  the

matter, furthermore, are not before us.

18. It is stated that two appointments were made in the year 2003 – one

against OBC quota and another against General quota.  It is not possible for

us to go into the question as to whether the entire quota for appointment in

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the category of OBC was filled up in the year 1998-1999 itself  and thus

appointment made against the vacant post from the said quota is illegal or

not.  The concerned respondents are not parties before us.   We have not

been informed as to whether any other person has been left out from the

original merit list   

19. Furthermore the select list would ordinarily remain valid for one year.

We fail  to understand on what basis appointments were made in 2003 or

subsequently.  Whether the validity of the said select list was extended or

not is not known.  Extension of select list must be done in accordance with

law.  Apart from a bald statement made in the list of dates that the validity

of the said select list had been extended, no document in support thereof has

been placed before us.

In State of Rajasthan & ors. vs. Jagdish Chopra [(2007) 8 SCC 161],

this Court held:

“9. Recruitment  for  teachers  in  the  State  of Rajasthan is admittedly governed by the statutory rules.  All  recruitments,  therefore,  are required to be made in terms thereof. Although Rule 9(3) of the  Rules  does  not  specifically  provide  for  the period for which the merit list shall remain valid but the intent of the legislature is absolutely clear as vacancies have to be determined only once in a year.  Vacancies  which  arose  in  the  subsequent years  could  be  filled  up  from  the  select  list

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prepared  in  the  previous  year  and  not  in  other manner.  Even otherwise,  in  absence  of  any rule, ordinary period of validity of select list should be one  year.  In  State  of  Bihar v.  Amrendra  Kumar Mishra (2006)  12  SCC  561,  this  Court  opined: (SCC p.564, para 9)

“9. In the aforementioned situation, in our opinion, he did not have any legal right to be appointed. Life of a panel, it  is well known, remains valid for a year.  Once  it  lapses,  unless  an appropriate  order  is  issued  by  the State,  no  appointment  can  be  made out of the said panel.”

It was further held: (SCC p.565, para 13) “13.  The  decisions  noticed hereinbefore  are  authorities  for  the proposition  that  even  the  wait  list must be acted upon having regard to the terms of the advertisement and in any  event  cannot  remain  operative beyond the prescribed period.” xxx xxx xxx

11. It  is  well-settled  principle  of  law  that  even selected candidates do not have legal right in this behalf.  (See  Shankarsan  Dash v.  Union of  India (1991) 3 SCC 47, and Asha Kaul v. State of J&K (1993) 2 SCC 573)”

20. For  the  reasons  aforementioned,  we  do  not  find  any merit  in  this

appeal,  which  is  dismissed  accordingly.   However,  in  the  facts  and

circumstances of the case there shall be no order as to costs.

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………………………….J. [S.B. Sinha]

..…………………………J.     [J.M. Panchal]

New Delhi; January 23, 2009

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