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PETITIONER: SHANKARSAN DASH

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT30/04/1991

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) RAY, B.C. (J) SHETTY, K.J. (J) VENKATACHALLIAH, M.N. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1991 AIR 1612            1991 SCR  (2) 567  1991 SCC  (3)  47        JT 1991 (2)   380  1991 SCALE  (1)848

ACT:      Civil Services: Recruitment by Competitive Examination- Candidate   included  in  merit  list-Whether  acquires   an indefeasible  right of appointment-Filling up of  vacancies- Adoption  of  different  policy  for  general  and  reserved categories-Whether   arbitrary   and   discriminatory-Indian Police  Service (Cadre) Rules, 1954: Rule 4:  Indian  Police Service  (Recruitment) Rules; Rules 3,4,6 and 7; and  Indian Police  Service  (Appointment  by  Competitive  Examination) Regulations:Regulations 2(1) (a), 8 and 13-Applicability of.

HEADNOTE:      On  the  basis  of the results of  the  combined  Civil Services  Examination  held  by  the  Union  Public  Service Commission  for  appointment  to several  Services  and  the position  in the combined merit list for the  Indian  Police Service  and  Police Services, Group ‘B’ the  appellant  was appointed   to   the  Delhi  Andaman  and   Nicobar   Police Service,also  Known  as  DANIP.  Subsequently  when  certain vacancies  arose  in  the  Indian  Police  Service,  due  to selected  candidates not joining the Service, and  only  the reserved   category   vacancies  were  filled  up   by   the candidates, who had been earlier appointed in DANIP Service, the  appellant who came to occupy top position,  represented to the authorities for filling the general vacancies   also, but  his request was turned down .Hence the appellant  filed writ application before the High Court, which was  dismissed in limine .      In  the  appeal  before this Court, on  behalf  of  the appellant  it  was contended that since  ultimately  several vacancies  in  the  general category  of  the  IPS  remained unfilled,  he was entitled to be appointed in one  of  them, that  since 54 vacancies were notified for general  category and  he  was  found  qualified  for  the  appointment,   the respondent  could not refuse to fill up the  vacancies,  and there   was  no  justification  to  refuse  to  follow   the procedure  adopted in similar situation with respect to  the reserved  category,  in  regard  to  the  general   category

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vacancies  also and that in view of the  relevant  statutory rules,  the authorities were under a duty to  continue  with the  process of filling up the vacancies until   nonremained vacant,  and by keeping the posts unfilled, they  had  acted arbitrarily.                                                        568      On  behalf  of  the respondent-Union of  India  it  was contended that the tentative service allocation for IPS  was completed before the commencement of the foundational course for the IPS, and the process of final service allocation was closed  after   filling  up  certain  vacancies,  which  had arisen, since the process for recruitment for the next  year had  already  started, and hence  the  additional  vacancies arising  later remained unfilled, that the process  followed in  connection with the reserved category, was not  followed in  regard to the general category vacancies on  account  of vital  differences obtaining in the relevant  conditions  in the two categories, and hence there was no discrimination or arbitrariness,  in  keeping the general  category  vacancies unfilled.      Dismissing the appeal, this Court      HELD:   1.1   Even  if  vacancies  are   notified   for appointment and adequate number of candidates are found fit, the  successful  candidates do not acquire  an  indefeasible right  to be appointed. 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. [572A-C]      State  of  Haryana  v.  Subhash  Chander  Marwaha   and Others,[1974]  1 SCR 165; Miss Neelima Shangla v.  State  of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar  and Others  v.  State of Punjab  and others, [1985] 1  SCR  899, referred to.      1.2  The  appellant  had not acquired  a  right  to  be appointed against the vacancy arising later on the basis  of any  of  the  rules, namely, Rule 4  of  the  Indian  Police Service (Cadre) Rules, 1954, Rules 3,4,6 and 7 of the Indian Police  Service  (Recruitment) Rules, 1954  and  Regulations 2(1)(a)  and  (c),  8 and 13 of the  Indian  Police  Service (Appointment   by  Competitive   Examination)   Regulations, 1955.These Provisions do not indicate that all the  notified vacancies are to be filled up.[573G,574B]      1.3  From the materials placed before the Court  it  is fully estab-                                                        569 lished that there has not been any arbitrariness  whatsoever on the part of the respondent in filling up the vacancies in question or other vacancies. The process of final  selection had  to  be  closed at some stage as was  actually  done.  A decision  in  this  regard was  accordingly  taken  and  the process  for further allotment to any vacancy arising  later was closed. It is not material if in pursuance of a decision already taken before closing the process of final selection, the  formal  appointments  were  concluded  later.  What  is relevant is to see as to when the process of final selection was  closed. Mere completing the formalities dose  not  give

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any right to appointment. [574E-G]      1.4  The  decision  to adopt a  different  policy  with respect to filling up of the reserved vacancies is justified on  account  of the special circumstances. The  decision  to depart   from   the  confirmed  policy   was   taken   after consideration  by the authorities of the position in  regard to unavailability of qualified candidates from year to  year adversely  affecting  the desired strength of  the  reserved candidates  in the services and cannot be condemned  on  the grounds of arbitrariness and illegal discrimination. [575B]

JUDGMENT:           CIVIL  APPELLATE  JURISDICTION: Civil  Appeal  No. 8613 of 1983.      From  the  Judgment and Order dated  21.1.1981  of  the Delhi High Court in Civil Writ No. 41 of 1981.      P.K.Goswamy and Kailash Vasudev for the Appellant.      V.C.  Mahajan,  Ashok Bhan and C.V. Subba Rao  for  the Respondent.      The Judgment of the Court was delivered by      Sharma, j. This appeal was earlier heared by a Division Bench and was referred to a Constitution Bench for examining the  question whether a candidate whose name appears in  the merit  list  on  the basis  of  a  competitive  examination, acquires  indefeasible right of appointment as a  Government servant  if  a  vacancy exists. Reference was  made  to  the decision in State of Haryana v. Subhash Chander Marwaha  and Others,  [1974]  1 SCR 165; Miss  Neelima  Shangla,  Ph.D.v. State  of Haryana and Others, [1986] 4 SCC 268 and  Jitendra Kumar and Others v. State of Punjab and Others. [1985]  1SCR 899.                                                        570      2.  The  appellant was selected in the  combined  Civil Services  Examination  held  by  the  Union  Public  Service Commission for appointment to several services including the Indian  Police Service (in short ‘the IPS’) and  the  Police Services  Group  ‘B’.  The  examination  had  been  held  in October,  1977 and the result was announced in May  1978.  A combined  merit  list for the IPS and  the  Police  Services Group  ‘B’  was  announced which included the  name  of  the appellant.  Out of the total number of 70 vacancies  in  the IPS  announced to be filled up, 54 were of general  category and the remaining 16 reserved for Scheduled Castes/Scheduled Tribes  candidates.  The position of the  appellant  in  the merit list was not high enough to be included in the IPS and he was offered appointment to the Delhi Andaman and  Nicobar police  Service (hereinafter referred to as  the  ‘DANIP’)in Police  Service Group ‘B’ which he accepted. On  account  of several candidates, allotted to Police Services Group ‘B’not Joining,   the  position  of  the  appellant  improved   and ultimately he was on the top of the list.      3. In June, 1979, 14 Vacancies arose in the IPS due  to selected  candidates  not joining the service.  Out  of  the same, 11 were in the general category and 3 in the  reserved category.  Three  vacancies in the reserved  category   were filled  up by the candidates who had been earlier  appointed in  DANIP Service, but no appointments were made to  general category  vacancies.  The appellant,  by  a  representation, prayed  that these vacancies also should be filled  up.  The request  was turned down, and the appellant moved the  Delhi High  Court by a writ application under Article 226  of  the Constitution, which was dismissed in limine by the  impugned order.

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    4.  The case of the appellant is that since  ultimately several  vacancies  in  the  general  category  of  the  IPS remained unfilled, he was entitled to be appointed in one of them,  and the authorities were not right in  rejecting  his representation. It has been contended that after calculating the  number of vacancies in the IPS, it was  announced  that appointments  would  be  made in  54  vacancies  of  general category, and steps for recruitment were accordingly  taken. The  appellant along with others appeared at  the  elaborate test held for the purpose and he was found qualified for the appointment  .In  that situation the  respondent  could  not refuse  to fill up the vacancies and proceed to appoint  the appellant  in  the Police Services Group ‘B’.  It  has  been argued  that the correct procedure in similar situation  was followed with respect to the reserved category and the three vacancies arising in identical situation were filled up from the candidates selected for DANIP Service, and                                                        571 there was no justification to refuse similar benefit to  the appellant in the general category.      5.  According  to the case of the Union of  India,  the process for the recruitment in question started in 1977, and the  tentative  service  allocation for  IPS  was  completed before the commencement of the foundational course in  July, 1978.  All the candidates selected for IPS, excepting  those who  were  eligible  to appear at the  examination  for  the Indian  Administrative  Service  scheduled  to  be  held  in October  -November, 1978, and such other candidates who  had not  been  finally  cleared on account  of  pending  medical examination  or  character verification had  to  attend  the foundational course. Candidates allocated to Police Services Group ‘B’ were not required to undergo this course. By June, 1978,  7 more vacancies arose on account of  candidates  not joining  IPS due to various reasons, and 7 persons in  order of  merit  from  the joint list of the IPS  and  the  Police Services   Group   ‘B’  were  allowed  to  fill   up   these vacancies.  The  last one in this list of 7  candidates  was Shekhar Singh at serial No. 94. The appellant could not  get a  chance as his position was 100th. This process  of  final service allocation was closed on 24.10.1978 or at the latest by 4.11.1978, in view of the process for recruitment for the year  1978,  which  had  already  started.  The   additional vacancies  arising  later,therefore,  remained  unfilled.The entire  procedure which is followed for recruitment  to  the Services  has  been  given  in  several  affidavits  of  the respondent,  and  detailed information in  this  regard  was supplemented  by a further affidavit during the  hearing  of the hearing of the appeal filed in the light of observations of the Bench.      6.Dealing with the appointments to reserved category,it has  been stated in the counter affidavit that  the  process which  was followed in connection with the general  category and  which  was  being earlier  followed  for  the  reserved category also, was relaxed in pursuance of a policy decision taken   after  examining  all  relevant  circumstances   and materials   in  regard  to  this  category   including   the strength  of the reserve category in the IPS, the result  of the  examinations  for  the year  1975,1976  and  1977.  The procedure  which  was  being followed in the  past  was  not relaxed  in  regard to the general category  on  account  of vital  differences obtaining in the relevant  conditions  in the  two  categories  and the appellant’s  plea  of  alleged discrimination  does not have any merit. Similarly the  case of  one  Km. Vandana Srivastava cited by the  appellant  has also been distinguished and Mr. Goswami, therefore , did not

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pursue this plea any further in his final reply.                                                        572     7.  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  and Others, [1974] 1 SCR 165; Miss Neelima  Shangla v.  State  of  Haryana  and Others, [1986]  4  SCC  268  and Jitendra  Kumar  and Others v. State of Punjab  and  Others, [1985] 1 SCR 899.     8.  In State of Haryana v. Subhash Chander  Marwaha  and Others,  (supra)  15 vacancies of  Subordinate  Judges  were advertised,  and out of the selection list only 7,  who  had secured more than 55% marks, were appointed, although  under the  relevant rules the eligibility condition required  only 45% marks. Since the High Court had recommended earlier,  to the  Punjab Government that only the candidates securing 55% marks or more should be appointed as Subordinate Judges, the other  candidates  included  in the  select  list  were  not appointed. They filed a writ petition before the High  Court claiming  a  right  of being appointed on  the  ground  that vacancies  existed  and they were qualified and  were  found suitable. The writ application was allowed. While  reversing the  decision  of the High Court, it was  observed  by  this Court that it was open to the Government to decide how  MANY appointments should be made and although the High Court  had appreciated   the  position  correctly,  it  had   ‘‘somehow persuaded  itself  to spell out a right  in  the  candidates because in fact there were 15 vacancies’’. It was  expressly ruled that the existence of vacancies does not give a  legal right to a selected candidate. Similarly, the claim  of some of  the  candidates  selected   for  appointment,  who  were petitioners in Jitendra Kumar and Others v. State of  Punjab and Others, was turned down holding that it was open to  the Government  to decide how many appointments would  be  made. The plea of arbitrariness was rejected in view of the  facts of the case and it was had that the candi-                                                        573 dates  did  not  acquire any right merely  by  applying  for selection or even after selection. It is true that the claim of  the  petitioner in the case of Miss Neelima  Shangla  v. State  of Haryana was allowed by this Court but, not on  the ground that she had acquired any right by her selection  and existence  of  vacancies. The fact was that the  matter  had been referred to the Public Service Commission which sent to the Government only the names of 17 candidates belonging  to the  general category on the assumption that only  17  posts were  to be filled up. The Government accordingly made  only 17  appointments and stated before the Court that they  were unable  to  select  and  appoint  more  candidates  as   the

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Commission had not recommended any other candidate. In  this background  it was observed that it is, of course,  open  to the Government not to fill up all the vacancies for a  valid reason,  but the selection cannot be arbitrarily  restricted to a few candidates notwithstanding the number of  vacancies and the availability of qualified candidates; and there must be a conscious application of mind by the Government and the High  Court  before  the  number  of  persons  selected  for appointment is restricted. The fact that it was not for  the Public Service Commission to take a decision in this  regard was  emphasised in this judgment. None of  these  decisions, therefore, supports the appellant.     9.  Mr. Goswami appearing in support of the  appeal  has contended that in view of the relevant statutory rules,  the authorities  were under a duty to continue with the  process of filling up all the vacancies until none remained  vacant. Reference  was  made to r. 4 of the  Indian  Police  Service (Cadre)  Rules, 1954, rr. 3,4,6 and 7 of the  Indian  Police Service (Recruitment) Rules, 1954 and rr., 2(1)(a), 2(1)(c), 8  and  13  of the Indian  Police  Service  (Appointment  by competitive Examination) Regulations, 1965. We do not  think any of these rules comes to the aid of the appellant. Rule 3 of  the Cadre Rules directs constitution of separate  cadres for States or group of States, and r. 4 empowers the Central Government  to determine  the strength in consultation  with the State Governments. The strength has to be re-examined at intervals of 3 years. Rule 3 of Recruitment Rules deals with the  constitution  of the Service, and r. 4  the  method  of recruitment.  Rules  6 and 7 give further  details  in  this regard.  The  learned  counsel  could  not  point  out   any provision indicating that all the notified vacancies have to be  filled up. Similar is the position with respect  to  the Competitive  Examination  Regulations.  Regulation   2(1)(a) defines  available vacancies as vacancies determined by  the Central  Government  to  be filled on  the  results  of  the examination,  described in Regulation 2(1)(a). Regulation  8 prescribes  that  the  candidates would  be  considered  for appointment to the available                                                        574 vacancies  subject to provisions 9 to 12 and  Regulation  13 clarifies  the  position that a candidate does not  get  any right  to appointment by mere inclusion of his name  in  the list. The final selection is subject to satisfactory  report on   the  character,  antecedent  and  suitability  of   the candidates.  We, therefore, reject that the claim  that  the appellant  had acquired a right to be appointed against  the vacancy arising later on the basis of any of the rules.     10.  The main contention on behalf of the appellant  has been, however, that the authorities in keeping the vacancies arising  later  unfilled,  acted  arbitrarily.  Mr.  Goswami referred  to several documents annexed to the special  leave petition  and  affidavits  filed on behalf  of  the  parties and contended that although appointments of many  candidates in the other services were made in the later vacancies,  the vacancy  in  the Indian Police  Service  which  subsequently became  available to the appellant was refused  without  any just  cause, resulting in illegal discrimination.  This  was emphatically  denied on behalf of the respondent. Since  the matter  did  not  appear to be free from  ambiguity  on  the basis of the affidavits before us, we decided to examine the factual  aspects  more  thoroughly by  examining  the  other available  materials on the records of the Union  of  India, and  accordingly the learned counsel for the respondent  got the   relevant  departmental  files  called.   Two   further affidavits were also filed along with photostat copies of  a

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large number of documents, which we examined at some  length with  the aid of the learned advocates for both sides.  From the  materials  produced before us it is  fully  established that there has not been any arbitrariness  whatsover on  the part  of  the  respondent in filling  up  the  vacancies  in question  or the other vacancies referred to by the  learned counsel  for the appellant. The process of  final  selection had  to  be  closed at some stage as was  actually  done.  A decision  in  this  regard was  accordingly  taken  and  the process for  further allotment to any vacancy arising  later was  closed.  Mr. Goswami relied upon  certain  appointments actually  made  subsequent to this stage and urged  that  by those  dates  the  further vacancies in  the  Indian  Police Service  had  arisen to which the appellant  and  the  other successful  candidates should have been adjusted. We do  not find any merit in this contention. It is not material if  in pursuance  of  a decision already taken before  closing  the process  of final selection, the formal  appointments   were concluded  later. What is relevant is to see as to when  the process  of final selection was closed. Mere completing  the formalities  cannot be of any help to the appellant.  We  do not consider it necessary to mention all the details in this connection  available  from the large  number  of  documents which we closely examined during the hearing at considerable length and do not                                                        575 have any hesitation in rejecting the argument of the learned counsel in this regard based on the factual aspect.      11.   So far the decision to adopt a  different  policy with  respect  to filling up of the  reserved  vacancies  is concerned  the same is justified on account of  the  special circumstances mentioned in the respondent’s affidavits.  The decision to depart from the confirmed policy was taken after a consideration by the authorities of the position in regard to unavailability of qualified candidates from year to  year adversely  affecting  the desired strength of  the  reserved candidates  in the services and cannot be condemned  on  the grounds of arbitrariness and illegal discrimination.      12.   In  the result, we do not find any merit  in  the appeal   which  is  accordingly  dismissed,  but,   in   the circumstances, without costs. N.P.V.                                    Appeal dismissed.                                                        576