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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: K.V. VIJEESH

DATE OF JUDGMENT:       27/02/1996

BENCH: AHMADI A.M. (CJ) BENCH: AHMADI A.M. (CJ) MUKHERJEE M.K. (J) VENKATASWAMI K. (J)

CITATION:  1996 SCC  (3) 139        1996 SCALE  (2)631

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Special leave  granted. Heard  the learned  counsel for the parties.      By  its   Employment  Notice   No.  1/90   the  Railway Recruitment Board  invited applications for 308 vacancies in the post  of Diesel  Assistants in  Palghat  and  Trivandrum Divisions  of   the  Southern  Railways.  Among  others  the respondent applied for the above post, and on his success in the written  examination and  viva voce  test held  for  the purpose, the  Board included  his name  in the  select list, published under  Notification No.  4/91 dated March 25, 1991 and   forwarded   the   same   to   the   Southern   Railway Administration recommending  appointments therefrom.  As  in spite of  his such  inclusion in  the panel he was not being given any  appointments he  filed an  application before the Central Administrative Tribunal, Ernakulam, contending inter alia, that  even though  in the  select list  his  rank  was 172 he  had not  been given appointment but persons lower in rank were  appointed. Accordingly,  he prayed  for necessary directions for  his appointment  as a  Diesel  Assistant  in accordance with his position in the panel.      In contesting  the application  the  appellant-Railways contended  that   subsequent  to   the   issuance   of   the notification dated  March 25, 1991 the  Railways had taken a policy decision  that the  requirement of  Diesel  Assistant staff had  to be  reduced owing  to impending  absorption of Steam surplus  staff. As  a result, the bottom 25 persons in the  select   list  had   to  be  withdrawn  from  the  list recommended for  employment. The  Railways further contended that the  select list was not prepared in order of merit and that the  respondent’s contention  that his rank in the list was 172  was   incorrect. Indeed, according to the Railways, the  respondent   was  at   the  bottom   of  the  list  and consequently his  name, besides others’, had to be withdrawn on the reduction of the number of vacancies.

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    While  accepting  the  Railways’  contention  that  the select list was not prepared in order of merit and conceding their right  to adjust  the number of vacancies according to requirement or  according to  policy, the  Tribunal observed that there  must be  some protection  given to those who had been declared successful. The Tribunal further observed that the least that was expected of the Railways was that such of the  candidates   who  were  successful  but  could  not  be accommodated as  a result  of reduction  in  the  number  of vacancies could  be employed subsequently when the vacancies arose. In  making the above observations the Tribunal quoted and relied  upon the  following passage from the judgment of this Court  in Prem  Prakash vs. Union of India (AIR 1984 SC 1831):      "Once   a    person   is   declared      successful according  to the  merit      list of  selected candidates  which      is based  on the declared number of      vacancies the  appointing authority      has the  responsibility to  appoint      him even if the number of vacancies      undergoes a  change after  his name      has been  included in  the list  of      selected candidates."      With the  above observations  the Tribunal directed the Southern Railways to consider the respondent for appointment as Diesel  Assistant  in  any  existing  or  next  available vacancy on  the basis  that his name had been recommended by the Railway  Recruitment Board  for appointment.  The  above order of  the Tribunal  is under  challenge in  the  present appeal at the instance of the Railways.      In the  context of  the facts  of the  instant case the only question  which falls  for determination in this appeal is whether a candidate whose name appears in the select list on the  basis of  a competitive examination acquires a right of appointment  in Government  service in  an existing  or a future vacancy.  The above  question has  been answered by a Constitution Bench  of this  Court in  Shjankarsan Dash  vs. Union of  India (AIR  1991 SC  1612); [(1991) 3 SCC 47] with the following words:-      "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. 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 had to be taken bona fide      for appropriate  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

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    discrimination can be permitted."                      (emphasis supplied)      In view  of the  above pronouncement  of this Court the order of the Tribunal directing absorption of the respondent solely on  the ground  that his  name was  included  in  the select  list  cannot  be  sustained.  The  reliance  of  the Tribunal on  the judgment  of this  Court in  Prem Prakash’s case (supra),  particularly, the  above quoted  passage  was wholly  misplaced   for,  in  that  case,  the  notification regarding recruitment  specifically providing  that  once  a person was  declared successful  according to the merit list of selected  candidates the  appointing  authority  had  the responsibility  to   appoint  him  even  if  the  number  of vacancies had  undergone a  change after  his name  had been included in  the list  of selected  candidates.  It  further provided  that   where  selected  candidates  were  awaiting appointment, recruitment should either be postponed till all the selected candidates were accommodated or, alternatively, intake for  the next  recruitment reduced  by the  number of candidates awaiting appointment. Relying solely on the above notification this  Court made earlier quoted observations in Prem Prakash’s  case (supra).  In absence  of any such rules governing the  appointment of  the respondent,  the Tribunal was therefore not justified in passing the impugned order.      Though the  above discussion  of ours was sufficient to set aside  the impugned order, we had, - keeping in view the observations of this Court in Shankarsan Dash’s case (supra) - called  for and  looked into  the relevant  records of the Railways to ascertain whether the Railway Administration had acted arbitrarily  in rejecting  the respondent’s claim and, for  that   matter,  whether   appointments  had  been  made according to  the comparative  merits of  the candidates  or not. The  records not  only indicate  that the contention of the Railways that the respondent was placed at the bottom of the list is correct but also that the appointments have been made according  to the comparative merits of the candidates. It cannot,  therefore, be  said that  the rejection  of  the respondent’s claim was arbitrary or discriminatory.      For the  foregoing discussion  we allow this appeal and set aside  the impugned order of the Tribunal. There will be no order as to costs.