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CASE NO.: Appeal (civil)  3987 of 2007

PETITIONER: State of Rajasthan & Ors

RESPONDENT: Jagdish Chopra

DATE OF JUDGMENT: 30/08/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.       3987          OF 2007 (Arising out of SLP (C) No.18940 of 2005)

S.B. Sinha, J.

1.      Leave granted. 2.      Appellant-State employs teachers on yearly basis.  Vacancies for each  year are separately determined.  Recruitment of teachers is made in terms of  Rajasthan Education Subordinate Services Rules, 1971 (the Act).  It remains  valid for one year that is from the first day of April to 31st March.  Rule 9(3)  of the said Rules read thus ; "Rule 9(3) Whether vacancies can be determined  more than once in a year. Vacancies shall be determined only once a year:  Vacancies occurring after the Departmental  Promotion Committee meeting has been held shall  be treated as the vacancies of the next year.   Variation in the vacancies that may crop up  between the date of requisitioning the Department  Promotion Committee and the date of  Departmental Promotion Committee meeting held  shall be taken into account at the Departmental  Promotion Committee meeting."

3.      For the year 1995-96, there were 33 vacancies and advertisements  were issued therefor.  Respondent herein was one of the applicants for the  said post.  The Selection Committee prepared a select list.  The respondent’s  name figured at serial No.10 of the said list.  Out of 33 vacancies, 19 posts  were to be filled up by Teachers (Physical Education) and 14 posts were  meant for Teachers (Grade-III).  Out of 19 posts of Teachers (Physical  Education), 9 posts were for General Category candidates; 5 posts were  reserved for OBC candidates; 2 posts for Scheduled Castes candidate and  one post for Scheduled Tribes candidate.  One post was to be filled on the  vacancies arising out of appointment on compassionate grounds.  The date  of joining was fixed on 12.04.1996.  The candidate placed at serial No.8 in  the merit list did not join.  The vacant post was said to have been carried  forward to 1996-97.  Respondent had also applied for the post of Teacher  (Physical Education) in the said year but he was been placed at serial No.23  in the merit list and, thus, was not found fit to be appointed in 1996-97 also.           He filed a writ petition before the Rajasthan High Court.  On the  premise that the validity of the merit list had expired, a learned Single Judge  of the said High Court opined that he had no legal right to be appointed  stating : "Since, respondent prepares a new panel every  year and it will remain effective prior to the end of

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that session, i.e., till March.  Hence, after the  expiry of duration of panel, the candidates  included in that panel, will not have remained any  legal right to be appointed.  In the present case  also, the duration of the panel has been expired and  appointments have already been made in  accordance with the same..."

4.      An intra-court appeal was preferred thereagainst.  A Division Bench  of the High Court, however, reversed the said decision without adverting to  the question as to whether the select list has remained valid or not.  It was  held : "Taking into consideration all the facts and  circumstances of the case, the defence taken that  till 31st of March, 1996 there was no post vacant in  the Department, is difficult to accept.  The  Petitioner did all whatever he could have done at  the relevant time to protect his right of  consideration for appointment.  The ground on  which the writ petition was dismissed is not  tenable.         As a result of the aforesaid discussion this  appeal succeeds and the same is allowed.  The  order dated 1.9.1997 of the learned Single Judge in  S.B. Civil Writ Petition No.4599/1996, impugned  in this appeal, is quashed and set aside.  The writ  petition is allowed and declared post of Teacher  (Physical Education) fallen vacant due to non- joining of the appointed candidate stood at serial  No.8 of the merit list.  The Respondents are  directed to give appointment to the Petitioner on  the post of Teacher (Physical Education), within a  period of one month from the date of receipt of the  copy of this judgment.  The appointment shall  relate back to the date on which the appointment  candidate stood at serial No.9 of the merit list,  ought to have joined the post.         The Petitioner appellant shall not be entitled  for the actual monetary benefits for the intervening  period i.e. the date on which he would have joined  the service and the date of his actual joining,  however, this period shall be counted for other  service and retrial benefits."

5.      The State is, thus, in appeal before us.           Mr. Aruneshwar Gupta, Additional Advocate General, appearing on  behalf of the appellant submitted that the respondent did not have any legal  right to be appointed, particularly, when the validity of a merit list is  confined only to one year.   6.      Mr. Aishwarya Bhati, learned counsel appearing on behalf of the  respondent, on the other hand, urged that as the candidates were to join their  posts on 12.4.1996, the State itself did not adhere to the period during which  of the vacancies were required to be filled up.  According to the learned  counsel, respondent has already joined his services.         Learned counsel submitted that Rule 9(3) does not fix the period of  validity of the panel and in that view of the matter, the respondent, who was  on the wait list, should have been appointed as one of the selected candidates  could not join.   7.      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

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determined only once in a year.  Vacancies which arose in the subsequent  years could be filled up from the select list 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 & Ors. v.  Amrendra Kumar Mishra [2006 (9) SCALE 549], this Court opined : "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 :

"The decision noticed hereinbefore are authorities  for the proposition that even the waitlist must be  acted upon having regard to the terms of the  advertisement and in any event cannot remain  operative beyond the prescribed period."

8.      The learned single Judge of the High Court was, therefore, correct in  holding that the second respondent has no legal right to be appointed.         It is well settled principle of law that even selected candidates do not  have legal right in this behalf.  [See Shankarasan Dash v. Union of India -  1991 (2) SCR 567, Asha Kaul (Mrs.) and Another v. State of Jammu and  Kashmir and Others (1993) 2 SCC 577]          In K. Jayamohan v. State of Kerala and Another [(1997) 5 SCC 170],  this court held: "5. It is settled legal position that merely because a  candidate is selected and kept in the waiting list, he  does not acquire any absolute right to appointment.  It is open to the Government to make the  appointment or not. Even if there is any vacancy, it  is not incumbent upon the Government to fill up  the same. But the appointing authority must give  reasonable explanation for non- appointment.  Equally, the Public Service  Commission/recruitment agency shall prepare  waiting list only to the extent of anticipated  vacancies. In view of the above settled legal  position, no error is found in the judgment of the  High Court warranting interference."         [See also Munna Roy v. Union of India and Others, (2000) 9 SCC  283]         In All India SC & ST Employees’ Association and Another v. A.  Arthur Jeen and Others [(2001) 6 SCC 380], it was opined: "10. Merely because the names of the candidates  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. Para 7 of the said judgment  reads thus :- "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

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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 vs. Subhash  Chander Marwaha, Neelima Shangla vs. State of  Haryana or Jatendra Kumar vs. State of Punjab."

9.      The principles laid down in the aforementioned cases have been  followed by this Court in Food Corporation of India and Others v. Bhanu  Lodh and Others [(2005) 3 SCC 618] stating:

"14. 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\005"

10.     In Pitta Naveen Kumar and Others v. Raja Narasaiah Zangiti and  Others (2006) 10 SCC 261], this Court observed :  

"The legal position obtaining in this behalf is not in  dispute.  A candidate does not have any legal right to be  appointed.  He in terms of Article 16 of the Constitution  of India has only a right to be considered therefor.   Consideration of the case of an individual candidate  although ordinarily is required to be made in terms of the  extant rules but strict adherence thereto would be  necessary in a case where the rules operate only to the  disadvantage of the candidates concerned and not  otherwise\005"   

11.     Furthermore, the Division Bench was not at all justified in directing  grant of service benefits to the respondent from the date on which the  appointed candidate at serial No.9 in the merit list ought to have joined the  post.  Such a direction, in our opinion, is wholly unwarranted.   

       We, however, cannot set aside the impugned judgment because of the  fact that the State has appointed the respondent during the pendency of this  Special Leave Petition.  We may furthermore notice that even a stay of  further proceedings in the contempt petition has been passed by this Court  by an order dated 16.05.2007.  We, therefore, are of the opinion that it will  not be proper for this Court now at this juncture to set aside the said

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appointment as the appointment granted in favour of the respondent by the  State was not by reason of his merit in the select list but by reason of the  orders of the High Court.  We, therefore, in exercise of our jurisdiction  under Article 142 of the Constitution of India and keeping in view the fact  that the matter is pending for a long time, are of the opinion that a direction  should be issued that the appointment of the respondent may be directed to  be continued as if he was appointed on and from the date he joined the  service. 12.     The appeal is allowed to the afore mentioned extent.  Parties are left to  bear their own costs.