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PETITIONER: N. MOHANAN

       Vs.

RESPONDENT: STATE OF KERALA & ORS.

DATE OF JUDGMENT:       20/12/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This special  leave petition has been filed against the judgement of  the Kerala  High Court,  made on  November 22, 1996 in O.P.No.13328/92.      The petitioner  therein, while  working as an Assistant in the  Economics and Statistics Department had  applied for recruitment as  Legal Assistant  Grade II  by transfer under Kerala Secretariat  Subordinate    Service Special Rule (for short, the ’Rule’). Rule 7 of the Rules prescribe the method of appointment  to   the post  of category   7,  viz., Legal Assistants,   Grade II,(i)  by direct  recruitment; or  (ii) appointment or  promotion from  any other category in Kerala Secretariat Subordinate  Service; or  (iv) transfer from any category in  any Department  under the  Government or in the service of  the High Count of  Kerala. Pursuant thereto, the petitioner and others applied for appointment by transfer as Legal Assistant.  Rules,   Applications  were  made  through Departments, written  test was  conducted on  August 8, 1989 and merit  list was prepared on October 23, 1989 for filling up one  post of  Legal Assistant,  Grade II by transfer form other Departments.  The petitioner  was included, at No. 13, in the  merit list.  Though vacancies  were existing, he was not appointed.  Therefore, he     filled a writ petition for direction  for   appointment.  Pursuant   to   the   interim direction, he  came to  be appointed on October 15, 1992. By Notification  dated  December  15,  1992  applications  were called for  to fill up the post of Legal Assistant, Grade II from  other  Departmental  candidates.    Consequently,  the waiting list  was cancelled.  It was contended that the list prepared in 1969 was still in operation. It was not intended that the list will be restricted to a particular period. The petitioner was appointed to the existing vacancy pursuant to the direction.  Therefore, he  is required to be regularised irrespective of  the notification  published on December 15, 1992 calling  for applications  from other  departments.  In this background, the High Court held that the appointment of the petitioner,  though under  the directions  of the Count, could not  be  regularised. irrespective of the notification published on  December    15,  1992 calling  for application from other  departments. In  this background, the High Court

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held that  the appointment  of the  petitioner, though under the direction  of the  court, could  not be regularised. The petitioner relied upon Union of India & Ors. v. Ishwar Singh Khatri &  Ors.[1992 supp.(3) SCC 84] and  contended that the existing vacancies should be filled  up from the select list and that  the omission therein is arbitrary and violative of his  right.   We  find   no  force  in  the  contention.  In Shankarasan Dash  v. Union  of  India[(1991)2  SCR  567],  a Constitution Bench  had held that mere inclusion of the name in the list of selected candidates does not confer any right upon any  candidate to be selected unless the relevant rules so indicate.  In Babita  Prasad and Ors. v. State of Bihar & Ors.[1993 Supp.(3) SSC 268] though the life of the panel was not  prescribed,  it  was  directed  to  be  confined  to  a reasonable time.  A long  waiting list  cannot  be  kept  in infinitum in  view  of  the  principle  "infinitum  in  jure reprobatur  ".   A  distinction  made  for  the  purpose  of appointment between  those who  have already  been appointed and those  who are  in the  waiting list  or  had  undergone training and  waiting for  appointment. It cannot be treated as arbitrary.  This Court  has held  that the  panel was too long and  was intended  to  last  indefinitely  barring  the future generations  for decades for being considered for the vacancies arising much later. In fact, the future generation would have  been kept  out for  a very  long period,  if the panel would  have been permitted to remain effective till it got exhausted. A panel of that type cannot be equated with a panel which  is prepared  having co-relation to the existing vacancies arising  in the near future. In Union Territory of Chandigarh v.  Dilbagh Singh & Ors [(1993)1 SSC 154], it was held that  a candidate  whose name finds place in the select list for  appointment to  a civil  post does not acquire and indefeasible right  to be  appointed in  such  post  in  the absence  of   any  specific  rule  entitling  him  for  such appointment  and   he  could   be    aggrieved  by  his  non appointment only  when the  Administration  does  so  either arbitrarily of  for no  bonafide or  valid reason.  In Nagar Mahapalika, Kanpur  v. Vinod Kumar  Srivastava [AIR 1987  SC 847]  it   was  observed  that  the  reason  underlying  the limitation of  the period  of life  of waiting  list for one year is  obviously to ensure that other qualified person are not   deprived of  their chances  of applied for the post in the succeeding  years and being selected for appointment. In State Chander  Narwaha &  Ors.[(1974) 1 SCR 165], this Court had  held  that  though  vacancies  were  existing  selected candidate had  no right to the appointment. It would be open to the Government not to appoint the candidate from the list for valid  reasons. In  State of Bihar & Ors. v. Secretariat Assistant Successful  Examinees Union  1986 and Ors.[(1994)1 SCC 126],  this court  had held  that a  person having  been selected, does  not on  account of  being empanelled  alone, acquire any  indefeasible right to appointment. Empannelment is, at  the best,  a condition of eligibility for purpose of appointment and  by itself  does not  amount to selection or creating right  to be  appointed unless relevant rules state to the  contrary. In  that case, select list was prepared on he  basis   of  merit   in  the   examination  without   any qualification     mark.  All   the  persons  who  wrote  the examination were ranked in the merit lists. They claimed the right to  get appointment  contending that till the list was exhausted, no  fresh list  could be  prepared and  that they were  entitled   to  the  appointment.  The  contention  was negatived and it was held that there is no provision  in the relevant   rules giving  indefeasible right  to the  persons whose names  appeared in the list to get appointed. There is

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no provision  under the Rules prohibiting authorities to fix the time limit.      Shri T.L.V. Iyer, learned senior counsel, contends that the list  was not published and so the life of the panel did not expire.  We find no force. The fact that candidates were appointed from  the panel is proof of its publication. It is then contended that even thought the petitioner has no right to be  appointed since  he was appointed on the basis of the order of  the Court  provisionally, the  appointment already made should  be  allowed  to  be  continued  and  should  be regularised. The  High Court  has negatived this contention, and in  our view  rightly. The  interim order  is subject to result  of   outcome  of  the  final  adjudication.  If  the petitioner is  not successful  in the  final  decision,  the interim order  would stand  set  aside.  So  appointment  by interim order  does not  create any right nor the petitioner get any  right to  regularisation on  that basis. In Dr.M.A. Haque v.  Union of  India [(1993)2  SCC 213], this Court had held that  recruitment rules  made under  Article 309 of the constitution have  to be  followed strictly  and not  in its breach. If  disregard of  the rules and the bypassing of the Public Service  Commissions are  permitted, it  will open  a backdoor for  illegal recruitment without limit. Recruitment rules should  be strictly  followed and  the Public  Service Commission cannot  keep the  rules in  cold storage. It was, therefore, held  relying  on  the  above  ratio  that  since existing list  was closed  and recruitment  was made through Public Service  Commission, cannot  keep the  rules in  cold storage. It  was, therefore, held relying on the above ratio that since existing list was closed and recruitment was made through Public  Service Commission  the  petitioner  has  no right to  that post  the reliance  of the  petitioner on the judgment of  this Court  in Ashok  Kumar &  Ors. v. Chairman Banking Service  Recruitment Board  & Ors.[AIR  1996 SC 976] was rightly  not accepted. There in appointment to vacancies arising subsequently  without being notification was held to be violative  of  Articles  14  and  16  since  everyone  is entitled to  claim consideration  for appointment  to a post under the State. The vacant posts arising or expected should be  notified  and  no  one  can  be  appointed  without  due notification of  the vacancies  and selection  according  to rule and  the prescribed  procedure. Therefore, appointments made from  amongst the  waiting  list  candidates  would  be illegal. In  the above  case also,  this  Court  refused  to interfere with  the order  passed by  the High Court even on equitable grounds.  In Surendra  Kumar  Gyani  v.  State  of Rajasthan [AIR  1993 SC  115],  this  Court  had  held  that termination of the services of the temporary employee on the availability of  the candidates recruited through the Public Service Commission  was held  to be valid in law and was not vitiated by  any error  of law.  Thus   we see that the High court has  not committed  any error  nor announced any wrong principle of law warranting interference.      The special leave petition is accordingly dismissed.