REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    104         OF 2009 (Arising out of SLP (C) No. 8586 of 2006)

S.S. BALU & ANR.     … APPELLANTS

Versus

STATE OF KERALA & ORS.            … RESPONDENTS

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Appellants herein are before us aggrieved by and dissatisfied with a

judgment and order dated 5.10.2005 passed by a Division Bench of the High

Court of Kerala at Ernakulam in Writ Appeal No. 53 of 2005 (A) and others

whereby and whereunder the Writ Appeals preferred by the State of Kerala

from a judgment and order dated 25.8.2004 passed by a learned single judge

of the said Court in O.P. No. 28082 of 2002 and others were allowed.  

3. Appellants herein pursuant to or in furtherance of a requisition made

by the State of Kerala before the Kerala Public Service Commission (for

short,  “the  Commission”)  applied  for  the  post  of  Lower  Primary/Upper

Primary School Assistants.  On 5.6.1997, the Commission prepared a rank

list,  which  was  in  force  from 5.6.1997  to  5.6.2000.   Appellants’  name

figured therein. The vacancies, however, were not filled up.  However, as

no vacancy was filled up by the Deputy Director of Education, writ petitions

were filed before the Kerala High Court praying for issuance of a writ of

mandamus  or  any  other  writ  or  order  directing  the  Deputy  Director  of

Education to report all the vacancies to the Commission so as to enable it to

advise  the  respective  candidates  pursuant  whereto  and  in  furtherance

whereof  the  appointing  authority  may issue  offers  of  appointment.   It  is

stated that the appellants were parties therein.   

4. On or about 3.6.2000, pursuant  to the direction of the High Court,

dated 22.5.2000, the Deputy Director of Education reported 125 vacancies

and on or about 5.6.2000, he reported further 50 vacancies just before the

expiry  of  the  rank list  with  a  note  that  they were  anticipated  vacancies.

However,  as  the  vacancies  were  shown  as  anticipated  vacancies,  the

Commission  could  not  issue  letter  of  advise  against  those 175 vacancies

reported by the Deputy Director of Education.  

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5.  On  or  about  24.10.2001,  the  said  writ  petitions  were  heard  and

disposed of by the Division Bench of the High Court, holding:

“We are  of  the  view  since  there  is  controversy between the parties with regard to the number of vacancies it would be appropriate that a direction be given to first respondent to take a decision on the dispute raised in this proceeding.”

6. In  compliance  of  the  said  judgment,  the  State  of  Kerala  issued  a

Government Order dated 15.1.2002 reporting that there was no vacancy.   

7. Another writ petition marked as O.P. No. 28082 of 2002 was filed by

a few candidates praying for quashing of the said Government Order dated

15.1.2002 upon grant of a declaration that 175 vacancies reported by the

Deputy Director of Education should be filled from amongst the candidates

whose names find place in the select list and for consequential directions.

8. By reason of a judgment and order dated 25.8.2004, the High Court

held:

“26. At  this  stage,  I  consider  it  necessary  to advert to the contention of the standing counsel of the Commission  that  after  the expiry of  Ext.  P1 rank list  a  new list  has come into operation and therefore candidates included in Ext. P1 rank list cannot be advised for appointment.  I cannot agree

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to the above argument of the learned counsel.  175 vacancies were reported to the Commission before the  expiry  of  Ext.  P1  rank  list.   Since  those vacancies  were  wrongly described as  anticipated vacancies  the  Commission  did  not  advise candidates  against  those  vacancies.   Thereupon, aggrieved  candidates  approached  this  Court.  A Division  Bench  of  this  Court  directed  the  1st respondent to report the vacancies correctly.  The 1st respondent,  however,  issued  Ext.  P3  order without taking into account all relevant aspect.  As I have found that 175 vacancies already reported were  not  anticipated  vacancies  but  vacancies which had, in fact, occurred prior to the expiry of Ext. P1, candidates included in Ext. P1 are entitled to  be  advised  for  appointment  against  those vacancies.  The legitimate claim of the petitioners cannot  be  denied  for  the  reason  that  during  the pendency of the writ petitions a new list has come into operation.  I am clearly of the view that what is  legitimately  due  to  the  candidates  in  Ext.  P1 should be given to them.”  

Appellants were not parties to the said writ petitions.

9. The  State  of  Kerala  preferred  an  appeal  thereagainst  before  the

Division Bench of the said Court, which was marked as Writ Appeal No. 53

of  2005.   Before  the  High  Court,  however,  appellants  got  themselves

impleaded as respondents 5 and 6 respectively.  The said Writ Appeal was

allowed by reason of the impugned judgment directing the Commission to

advise in respect  of 18 of the original  petitioners  who had filed the writ

petition bearing O.P. No. 28082 of 2002 to quash the Government Order

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dated  15.1.2002.   No  direction  was  issued  in  respect  of  those  who  got

themselves impleaded as parties therein including the appellants herein.  

10. Appellants  are,  thus,  before  us,  contending  that  as  their  names

appeared in the ‘rank list’ and they being seniors to some of the original writ

petitioners they should also be directed to be appointed.  

11. Ms.  Malini  Poduval,  learned  counsel  appearing  on  behalf  of  the

appellants would submit:

i. the High Court committed a serious error of law in passing the

impugned  judgment  insofar  as  it  failed  to  take  into

consideration that as the appellants are similarly situated with

that  of  the  original  writ  petitioners  to  whom  the  State

Government agreed to give appointment.

ii. There  was absolutely no  reason as  to  why they should  have

been discriminated against particularly when they had also got

themselves impleaded as respondents in the writ appeal.   

12. Mr.  Vipin  Nair,  learned  counsel  appearing  on  behalf  of  the

respondents, on the other hand, would urge that the respondents having filed

no writ petition and keeping in view of the fact that not only the rank list in

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question  but  also  the  2nd rank  list  for  the period  between 16.9.2002 and

15.9.2005 are exhausted, the impugned judgment is wholly unassailable.   

13. The  legality  and/or  the  validity  of  Government  Order  dated

15.1.2002,  as  noticed  hereinbefore,  was  questioned,  inter  alia,  on  the

premise that the actual vacancy position had been suppressed by the State.

A finding of fact to that effect appears to have been arrived at by the learned

single judge of the High Court in his judgment and order dated 25.8.2004,

holding:

“24. Respondents 1 and 2 have got a contention that  65% of  the  N.J.D.  vacancies  alone  shall  be reckoned as reportable vacancies.  I do not agree. As rightly submitted by the petitioners, vacancies had been reported based on the 65% set apart for direct  recruitment  and  once  those  vacancies  fall vacant consequent on the non joining duty of the candidates  advised  for  appointment,  a  further deduction of 35% from the N.J.D. vacancies is not justified.  

25. It  is  not  disputed  that  total  vacancies including  N.J.D.  vacancies  reported  to  the Commission after 5.12.1997 was 580 (barring 175 vacancies  described  as  anticipated  vacancies). Therefore the number of unreported vacancies will come to 208.  When state of affairs stood as above, the  2nd respondent  reported  125  vacancies  on 3.6.2000 and 50 vacancies on 5.6.2000 as directed by this Court.   The reporting was done with  the rider  that  the  above  175  vacancies  were  only anticipated vacancies.  As I have found that there were, at any rate, 208 reportable vacancies, I have

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no hesitation to hold that the 2nd respondent was not justified in informing the Commission that 175 vacancies were anticipated vacancies.  Ext. P3 is therefore unsustainable.”

14. The matter might have been different, had the learned single judge as

also the Division Bench come to a conclusion that in fact there existed 125

vacancies  wherefor  requisition  was  sent  to  the  Commissioner.   The

existence of actual number of vacancies being in dispute, it is difficult for us

to  opine  as  has  been  contended  by  the  learned  counsel  that  all  such

vacancies existed.  Before the Division Bench of the High Court, the State

conceded that 18 original writ petitioners may be appointed stating that they

were the actual beneficiaries of the judgment.  Such a stand on the part of

the State was accepted.  The Division Bench of the High Court did not go

into  the  other  contentions  raised  by  the  parties  thereto.  No  factual

foundation, therefore, has been laid before us for arriving at the conclusion

that all the 125 vacancies existed.   

15. There is another aspect of the matter which cannot also be lost sight

of.  A person does not acquire a legal right to be appointed only because his

name appears in the select list.  [See  Pitta Naveen Kumar & ors.  vs.  Raja

Narasaiah Zangiti & ors. (2006) 10 SCC 261].   

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16. The state as an employer has a right to fill up all the posts or not to

fill them up.  Unless a discrimination is made in regard to the filling up of

the vacancies or an arbitrariness is committed, the concerned candidate will

have no legal right for obtaining a writ of or in the nature of mandamus.

[See Batiarani Gramiya Bank vs. Pallab Kumar & ors. (2004) 9 SCC 100]

In  Shankarsan  Dash  vs.  Union  of  India [(1991)  3  SCC  47],  a

Constitution Bench of this Court held:

“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.”

In  State  of  Haryana  vs. Subash  Chander  Marwaha  [(1974)  3  SCC

220], this Court held:

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“The mere fact that a candidate’s name appears in the list will not entitle him to a mandamus that he be  appointed.  Indeed,  if  the  State  Government while  making  the  selection  for  appointment  had departed from the ranking given in the list, there would  have  been  a  legitimate  grievance  on  the ground  that  the  State  Government  had  departed from the rules in this respect…

11. It must  be remembered that  the petition is for a mandamus. This Court has pointed out in Dr Rai Shivendra Bahadur v. Governing Body of the Nalanda College that in order that mandamus may issue to  compel  an authority to  do  something,  it must  be  shown  that  the  statute  imposes  a  legal duty on that authority and the aggrieved party has a  legal  right  under  the  statute  to  enforce  its performance.  Since there is  no legal  duty on the State  Government  to  appoint  all  the  15  persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived.”

In  Pitta Naveen Kumar  vs.  Raja Narasaiah Zangiti  [(2006) 10 SCC

261], this Court held:

“….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…”

In State of Rajasthan & ors. vs. Jagdish Chopra [(2007) 8 SCC 161],

this Court held:

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“9. 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 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 v.  Amrendra  Kumar Mishra (2006)  12  SCC  561,  this  Court  opined: (SCC p.564, para 9)

“9. 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: (SCC p.565, para 13) “13.  The  decisions  noticed hereinbefore  are  authorities  for  the proposition  that  even  the  wait  list must be acted upon having regard to the terms of the advertisement and in any  event  cannot  remain  operative beyond the prescribed period.” xxx xxx xxx

11. It  is  well-settled  principle  of  law  that  even selected candidates do not have legal right in this behalf.  (See  Shankarsan  Dash v.  Union of  India (1991) 3 SCC 47, and Asha Kaul v. State of J&K (1993) 2 SCC 573)”

17. Furthermore, the rank list was valid for a period of three years.  Its

validity expired on 5.6.2000.   Another  Select  List  was published for  the

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period from 16.9.2002 to 15.9.2005.  Vacancies in terms of the said Select

List have also been filled up.    

18. It  is  also  well  settled  principle  of  law that  “delay defeats  equity”.

Government Order was issued on 15.1.2002.  Appellants did not file any

writ application questioning the legality and validity thereof.  Only after the

writ petitions filed by others were allowed and State of Kerala preferred an

appeal thereagainst, they impleaded themselves as party respondents.  It is

now a trite law that where the writ  petitioner approaches the High Court

after a long delay, reliefs prayed for may be denied to them on the ground of

delay and laches irrespective of the fact that they are similarly situated to

the other candidates who obtain the benefit of the judgment.  It is, thus, not

possible  for  us  to  issue  any  direction  to  the  State  of  Kerala  or  the

Commission to appoint the appellants at this stage.

In New Delhi Minicipal Council v. Pan Singh and Ors. (2007) 9 SCC

278, this Court held:

“16. There is another aspect of the matter which cannot  be  lost  sight  of.  The  respondents  herein filed a writ  petition after  17 years.  They did not agitate their grievances for a long time. They, as noticed  herein,  did  not  claim parity  with  the  17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the

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reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees  who  were  employed  or  who  were recruited after the cut-off date have been granted the  said  scale  of  pay.  After  such  a  long  time, therefore,  the  writ  petitions  could not  have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised  in  favour  of  those  who  approach  the court  after  a  long  time.   Delay  and  laches  are relevant  factors  for  exercise  of  equitable jurisdiction.”

{See  also  Virender  Chaudhary vs.  Bharat  Petroleum Corporation  & Ors.

[2008 (15) SCALE 67]}

19. For the reasons aforementioned, there is no merit in this appeal.  It is

dismissed accordingly.  No costs.   

.……………………………….J. [S.B. Sinha]

...…………………………..…J. [Dr. Mukundakam Sharma]

New Delhi; JANUARY 13, 2009

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