http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (civil)  4554 of 2006

PETITIONER: Union of India & Ors

RESPONDENT: B. Valluvan & Ors

DATE OF JUDGMENT: 19/10/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.7903 of 2004)

S.B. Sinha, J.

       Leave granted.   

       The Department of Personnel and Training, Andaman & Nicobar  Administration (Administration) issued a circular letter, stating :

"As you may be aware, as per the instructions of the  Government of India, whereas validity of panel prepared  against promotion quota is generally limited to one year,  there is no fixed life of the panel against direct  recruitment post.  Accord       ing to the Govt. of India’s  instructions therefore 3 panel prepared for direct  recruitment should not be unduly inflated and should take  care of immediate vacancies and those which are likely to  occur in the near future.  A maximum of ten percent  additional persons can be kept on the panel against the  existing vacancies at the time of preparation pf panel or  vacancies likely to occur in the near future.  Such a  provision has been kept so that government can obtain  the services of better qualified persons if they become  available in due course of time.   

       It has however been observed that these  instructions of the Government of India are not even  followed by all the Departments of this Administration  while preparing panel for direct recruitment as well as for  promotion.

       It is, therefore, brought to the notice of all the  Departments that in future panel for promotion as well as  for direct recruitment against various categories of posts  should be prepared strictly in accordance with the  instructions of the Govt. of India issued from time to  time."   

       Three vacancies for the post of Pharmacist were notified in the year  1999.  Applications were invited from the eligible candidates.  In the  advertisement issued therefor, it was categorically stated :

"EMPLOYMENT NEWS

Applications are invited from the eligible local  candidates for the post of Pharmacist Under the A & N

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

Health Department, Port Blair

a)      No. of vacancies :-     3 (three)"               The 1st Respondent together with others, pursuant to or in furtherance  of the said advertisement filed application.  Interviews therefor were held in  1999.  A select list of three candidates was prepared on the basis of the  recommendations made by the Selection Committee on 27.5.1999.  The said  three persons accepted the offer and joined services. The Selection  Committee, however, made a list of 19 candidates for future appointments  occurring if any, in the said year.  The said select list, according to  Appellant, was prepared in violation of the purported statutory instructions  dated 26.6.1992.  All the three vacancies in the post of Pharmacist having  been filled up, the said panel was directed to be cancelled by an order dated  7.12.1999.  Several candidates purported to be aggrieved by and dissatisfied  therewith, filed an Original Application before the Central Administrative  Tribunal, inter alia, contending that as the panel was drawn for future  vacancies, they were entitled to be appointed against the vacancies occurring  thereafter.  It was furthermore contended that as several new posts were  likely to be created and/or likely to fall vacant in the near future, they should  be directed to be appointed in such vacancies.  During pendency of the said  application, another advertisement was issued on 17.5.2000 for filling up of  one vacancy, which occurred in the year 2000.  Interview was also held on  26.6.2000 and the said vacancy had also been filled up.  The said fact was  brought on record by Appellants herein.  By an order dated 13.9.2002, the  Tribunal rejected the said Original Application, inter alia, opining :

".....In the present case, however only 3 candidates had  figured in the select list for immediate appointment and  the panel of candidates in the waiting list had been  cancelled on the ground that one of the candidates in that  panel was not qualified and that the preparation of the  panel was not in accordance with the Government of  India/A&N Administration instructions."               It was further observed :

".....When only three vacancies had been advertised, the  preparation of a waiting list containing 19 candidates  does not appear to be either legal or reasonable.  Besides  in this case, against the three advertised vacancies, the  three selected candidates have been appointed.  In any  case, the contention of the applicants that this panel  should be operated even beyond a period of one year is  rejected as they themselves have stated that it should be  operated for one year which is as per the rules.  In the  facts and circumstances of the case; the impugned order  of cancellation issued by the respondents dated 7.12.1999  cannot be held to be arbitrary, illegal or against the rules  which justifies any interference in the matter."    

       The said order came to be questioned before the Calcutta High   Court.  A Division Bench of the said Court dismissed the said writ petition,  stating :

       "Our attention was not drawn to any statutory or  otherwise rules authorizing the authority concerned to  keep the panel alive after supplying the notified  vacancies.  That being the position, it is well settled in  law that the panel stood lapsed the moment notified  vacancies had been filled up."           

       A review application was filed by the 1st Respondent and by reason of  the impugned judgment, the same was allowed by another Division Bench of  the said Court, stating :

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

       "Having regard to the unusual nature of the case,  we have devoted considerable time to the submissions  made on behalf of the parties, both in support of the  application and against it, and we are convinced that the  order of the Division Bench sought to be reviewed  suffers from errors apparent on the face of the record.   We are of the view that while expressing the correct legal  position, the Division Bench appears to have applied the  said provisions erroneously in the facts of this case, since  the list of selected candidates was not confined only to  the immediate vacancies but also in respect of future  vacancies as well.  We are inclined to agree with Mr. Roy  that the first three names were in respect of immediate  vacancies and the object of preparing a list other names  was for the definite purpose of filling up future  vacancies.  It is not as if there was no intention that the  panel was to be utilized at a later stage and was meant  only for filling up the three immediate vacancies, which  were then existing under one and the same selection."    

       Mr. B. Datta, the learned Additional Solicitor General appearing on  behalf of Union of India submitted that as the life of the panel was one year,  the impugned judgment cannot be sustained.   

       Mr. Gaurav Jain, learned counsel appearing on behalf of Respondents,  on the other hand, urged that keeping in view the fact that Respondent No.1  has been appointed in August, 2005, pursuant to the judgment of the High  Court, this Court may not exercise its discretionary jurisdiction under Article  136 of the Constitution of India.

       Recruitment process, as is well known, must be commensurate with  the statute or the statutory rule operating in the field.  We have noticed  hereinbefore, advertisement was made for three posts.  It was not indicated  therein that another panel for filling up of the future vacancies was to be  prepared by the Selection Committee.  In the select list prepared by the  Selection Committee, the name of 1st Respondent was at Serial No.4.   Recommendations were made containing the names of 19 persons for future  vacancies.  Only because a panel has been prepared by the Selection  Committee, the same by itself, in our opinion, would not mean that the same  should be given effect to irrespective of the fact that there was no such rule  operating in the field.  The Selection Committee was bound to comply with  the selection process only in terms of the extant rules.  It was bound to  follow the stipulations made in the advertisement itself.  Even in the  advertisement it was not indicated that a select list would be prepared for  filling up future vacancies.  The Selection Committee, having been  appointed only for recommending the names of suitable candidates, who  were fit to be appointed, could not have embarked upon the question as  regards likelihood of future vacancy.                  The Review Bench of the High Court posed unto itself a wrong  question.  It did not say how an error apparent on the face of the record had  been committed.  It did not assign sufficient or cogent reason to hold as to  how the Original Application before the Tribunal would have been  maintainable if the petitioners had no existing legal right.  The 1st  Respondent did not have any legal right to be appointed.  He filed an  application pursuant to the said advertisement.  It is not his case that his  application had not been considered.  He did not raise any plea of unfair  treatment.  No malafide was also alleged.      

       Life of a panel, as is well known, must be for a limited period.  It is  governed by the statutory rules.  From the circular letter dated 26.6.1992 it is  evident that ordinarily the life of the panel should be for one year.  What had  been indicated therein was that the panel prepared for recruitment should not  be unduly inflated.  Vacancies should ordinarily be notified keeping in view

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

the immediate future need.  It has categorically been stated that only upto a  maximum of 10 additional persons were kept in a panel against the existing  vacancies which were likely to occur in future.  The said circular letter was  meant to be applied in a case where, thus, more than 10 vacancies were  notified.  It did not have any universal application.  By reason of the said  circular letter, the ordinary life of the panel was not to be extended.  Thereby  no new practice or rule was brought into force.   

       In Madan Lal & Ors. vs. State of J & K & Ors. [(1995) 3 SCC  486], this Court held :                  "It is no doubt true that even if requisition is made  by the Government for 11 posts the Public Service  Commission may send merit list of suitable candidates  which may exceed 11. That by itself may not be bad but  at the time of giving actual appointments the merit list  has to be so operated that only 11 vacancies are filled up,  because the requisition being for 11 vacancies, the  consequent advertisement and recruitment could also be  for 11 vacancies and no more. It is easy to visualise that  if requisition is for 11 vacancies and that results in the  initiation of recruitment process by way of  advertisement, whether the advertisement mentions  filling up of 11 vacancies or not, the prospective  candidates can easily find out from the Office of the  Commission that the requisition for the proposed  recruitment is for filling up 11 vacancies. In such a case a  given candidate may not like to compete for diverse  reasons but if requisition is for larger number of  vacancies for which recruitment is initiated, he may like  to compete. Consequently the actual appointments to the  posts have to be confined to the posts for recruitment to  which requisition is sent by the Government. In such an  eventuality, candidates in excess of 11 who are lower in  the merit list of candidates can only be treated as wait  listed candidates in order of merit to fill only the eleven  vacancies for which recruitment has been made, in the  event of any higher candidate not being available to fill  the 11 vacancies, for any reason. Once the 11 vacancies  are filled by candidates taken in order of merit from the  select list will get exhausted, having served its purpose.

                       *               *               *               *         In the present case as the requisition is for 11 posts  and even though the Commission might have sent list of  20 selected candidates, appointments to be effected out of  the said list would be on 11 posts and not beyond 11  posts, as discussed by us earlier. This contention will  stand accepted to the extent indicated hereinabove."

                In State of U.P. & Ors. vs. Harish Chandra & Ors. [(1996) 9 SCC  309], it was opined :         "Coming to the merits of the matter, in view of the  Statutory Rules contained in the Rule 26 of the  Recruitment Rules the conclusion is irresistible that a  select list prepared under the Recruitment Rules has its  life only for one year from the date of the preparation of  the list and it expires thereafter. Rule 26 is extracted  hereinbelow in extenso :         "26. Appointment by appointing authority.- The  select list referred to in Sub-rules (6) and (7) of Rule 23  shall be forwarded by the Selection Committee to the  appointing authority mentioning the aggregate marks  obtained at the selection by each candidates. The name of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

general and reserve candidates shall be arranged by the  appointing authority in a common list according to the  merit of the candidates and the appointment shall be  offered in the order in which the names are arranged in  the list shall hold good for a period of one year from the  date of selection."         Notwithstanding the aforesaid Statutory Rule and  without applying the mind to the aforesaid Rule the High  Court relying upon some earlier decisions of the Court  came to hold that the list does not expire after a period of  one year which on the face of it is erroneous. Further  question that arises in this context is whether the High  Court was justified in issuing the mandamus to the  appellant to make recruitment of the Writ Petitioners.  Under the Constitution a mandamus can be issued by the  Court when the applicant establishes that he has a legal  right to the performance of legal duty by the party against  whom the mandamus is sought and said right was  subsisting on the date of the petition. The duty that may  be enjoined by mandamus may be one imposed by the  Constitution or a Statute or by Rules or orders having the  force of law. But no mandamus can be issued to direct  the Government to refrain from enforcing the provisions  of law or to do something which is contrary to law."                   Yet again, in Surinder Singh & Ors. vs. State of Punjab & Anr.       [(1997) 8 SCC 488], it was stated :

"It is in no uncertain words that this Court has held  that it would be an improper exercise of power to make  appointments over and above those advertised. It is only  in rare and exceptional circumstances and in emergent  situation that this rule can be deviated from. It should be  clearly spelled out as to under what policy such a  decision has been taken. Exercise of such power has to be  tested on the touchstone of reasonableness. Before any  advertisement is issued, it would, therefore, be incumbent  upon the authorities to take into account the existing  vacancies and anticipated vacancies. It is not as a matter  of course that the authority can fill up more posts than  advertised."

       The Division Bench of the High Court committed a serious error in  entering into the merit of the matter while exercising its review jurisdiction.   The court’s jurisdiction to review its own judgment, as is well known, is  limited.  The High Court, indisputably, has a power of review, but it must be  exercised within the framework of Section 114 read with Order 47 of the  Code of Civil Procedure.  The High Court did not arrive at a finding that  there existed an error on the face of the record.  In fact, the High Court,  despite noticing the argument advanced on behalf of Union of India that the  1st Respondent had no legal right to be appointed, proceeded to opine that  the panel prepared for filling up of future vacancies should be given effect  to.  The review of the High Court was not only contrary to the circular letter  issued by Union of India, but also contrary to the general principles of law.         The life of a panel ordinarily is one year.  The same can be extended  only by the State and that too if the statutory rule permits it to do it.  The  High Court ordinarily would not extend the life of a panel.  Once a panel  stands exhausted upon filling up of all the posts, the question of enforcing a  future panel would not arise.  It was for the State to accept the said  recommendations of the Selection Committee or reject the same.  As has  been noticed hereinbefore, all notified vacancies as also the vacancy which  arose in 2000 had also been filled up.  As the future vacancy had already  been filled up in the year 2000, the question of referring back to the panel  prepared in the year 1999 did not arise.  The impugned judgment, therefore,  cannot be sustained.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

       Coming now to the plea of learned counsel that Respondent No.1 has  been appointed in August, 2005, in our opinion, is not of much significance.   If he has been appointed pursuant to the order of the High Court, the same  invariably would be subject to the result of this appeal.  Respondent No.1  did not have any legal right to be appointed even out of the said panel.  His  position was at Serial No.4 and not even at Serial No.1.  Therefore, there  were three persons in the panel above him.  The High Court, therefore,  committed a manifest error in issuing the impugned directions. Sympathy  alone, in our opinion, cannot be a ground to allow the High Court judgment  to be sustained, although, it is ex facie illegal.  {See Maruti Udyog Ltd. vs.  Ram Lal & Ors. [(2005) 2 SCC 638].}      

       For the reasons aforementioned, the impugned judgment cannot be  sustained.  It is set aside accordingly.  The appeal is allowed.  In the facts  and circumstances of the case, however, there shall be no order as to costs.