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PETITIONER: STATE OF BIHAR & ORS.

       Vs.

RESPONDENT: MD. KALIMUDDIN & ORS.

DATE OF JUDGMENT:       10/01/1996

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MANOHAR SUJATA V. (J)

CITATION:  1996 AIR 1002            1996 SCC  (1) 720  JT 1996 (1)   205        1996 SCALE  (1)235

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T AHMADI,CJI      Special leave granted.      The  Director,  Primary  Education,  Bihar,  issued  an advertisement  on   7.8.1988   inviting   applications   for appointment  to   the  post   of  Assistant   Teachers.  The respondents  applied   in  response   thereto.   They   were interviewed by a Selection Committee some time in July, 1989 and  thereafter   a  panel  of  273  persons  including  the respondents came  to  be  prepared  by  the  said  Selection Committee on  19.1.1991. Out  of the candidates so selected, the  director   approved  the   names  of   98  persons  for appointment on  30.1.1991 and hence the remaining candidates remained on  the panel described as the waiting list. Out of 98 candidates  so appointed,  47  belonged  to  the  general category, 43  to the  Scheduled Tribes  category, 6  to  the Scheduled Castes category and 2 to the handicapped category. Out of  98 persons,  only  91  joined.  The  panel  for  the remaining candidates  was prepared  on 26.8.1991,  which was described  as   the  revised   waiting  list.  Some  of  the candidates, who  were not appointed, moved the High Court by way of  writ petition  on 20.1.1992.  By an interim order of the High Court, the panel was not allowed to lapse.      The Government Basic School, Assistant Teachers Service Encadrement,   Appointment    and   Transfer   Rules,   1975 (hereinafter called ‘the Rules’) framed under Article 309 of the  Constitution   provides  that  every  teacher  will  be appointed on  probation for  two years.  It further provides that the list of candidates prepared for direct appointments will be  valid for one year from the date of approval of the project by  the Selection  Committee. The  contention of the learned counsel  for the  appellants, therefore, is that the High Court’s order to continue the list beyond one year runs counter to rules framed in exercise of constitutional powers under Article  309 of  the Constitution  and hence  the same

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cannot be  allowed to stand. He has further pointed out from the decisions  of this  Court that a candidate placed on the waiting list  has no  right to  appointment and  that in any case the  waiting list  cannot be  a list which would ensure indefinitely till  every candidate on the list is appointed. According to  him under the provisions of clause (6) of Rule 5, the list of candidates prepared could ensure for one year only from  the date  of  approval  of  the  project  by  the Selection Committee  and on the expiry of that period, which in the  instant  case  expired  two  days  before  the  writ petition was  filed, the  list  would  stand  exhausted.  As against  this,  the  learned  counsel  for  the  respondents contended that  there were  in all  160 vacancies  when  the advertisement was  issued  and  selections  were  made  and, therefore, at  least that  number of  candidates should have been appointed  after the  conclusion of  the selection.  He urged that  although a person on a waiting list may not have a  legal   right  to   appointment,  the  Department  cannot arbitrarily refuse  to  make  appointments  from  the  panel prepared  for   that  purpose   after   raising   legitimate expectations.   Our   attention   was   drawn   to   certain correspondence exchanged  in this  behalf to which it is not necessary to refer as the fact that there were 160 vacancies is not  disputed. The  question then  is whether after going through the  process of  selecting candidates  what was  the reason for the Government to refuse appointments to selected candidates, at  least to  the extent  of 160  vacancies? The High Court  points  out  in  paragraph  8  of  the  impugned judgment that  against 160  vacancies only  98 persons  were given appointments  out of them 91 reported for duty and the rest were denied appointment for no valid reason whatsoever.      It was next contended by counsel for the appellant that the High  Court had  entertained the petition after one year i.e. after  the list had lapsed, on the erroneous assumption that the  respondents had  moved  the  petition  before  the expiry of  one year.  According to  him  the  panel  of  273 candidates was prepared on 19.1.1991 and hence its life came to an  end on  the expiry of one year on 18.1.1992 while the petition was  filed two  days later  on 20.1.1992  and  was, therefore, clearly  after the  list  had  lapsed.  The  High Court, contends counsel, was wrong in observing:      "However,  as  stated  above,  the  writ      petition was  filed on  20.1.1992. Thus,      even if  the period or life of the panel      was  treated  to  be  one  year,  it  is      obvious that  the petitioners  have come      to this  Court before expiry of the said      period." The above  observation, it was said, illustrates the factual error in calculating the time factor.      The fact  that the empanelment was done in pursuance of the advertisement  issued and  selections made  as  per  the prevailing legal position, is not in question. So also it is unexceptionable that  merely because  a candidate’s  name is included in  the panel  does not  confer  any  right  to  be appointed. See  Shankarsan Dash  v. Union  of India (1991) 2 SCR 567.  The question,  however, is,  if the  posts are not abolished or reduced and the vacancies need to be filled up, can it  lie in  the mouth  of Government to say that since a new reservation  policy has been adopted, the rules would be amended and appointments would be made thereafter consistent with the revised rules and new policy? The advertisement was issued in  1988. The  Memo No.22  dated 19.1.1991 shows that the panel  was  received  in  the  office  of  the  Regional Director on  18.1.1991. This memo says that the vacancies in

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matric trained category in the division were 160. It further desired that  the list  may be  approved at an early date so that long  standing vacancies  may be  filled  up.  It  also points to  the paucity of matric trained teachers in various schools. The  subsequent letter  of 5.6.1991  directs that a panel of  candidates of  different categories of reservation in order  of merit  be prepared as per the modified rules of reservation and  the same  be sent  for approval. It further says that  unless this  is done,  no recruitment  shall take place.  In   response  to   the  said  letter  the  Regional Dy.Director of  Education  informed  the  Director  (Primary Education), vide letter dated 26.8.1991, that he had already submitted  the   approved  panel   in  the  secretarial  for appointment  of   teachers  under   the  amended   rules  of reservation. This  is how  the position  stood when the writ petition was filed on 20.1.1992.      From the  aforementioned facts  it is  clear  that  the Selection Committee  had  prepared  the  panel  or  list  on 19.1.1991. The  first batch  of  98  appointments  was  made therefrom. The  reservation rules  were then  modified.  The second batch  as per  the said modified rules was sent later on  5.6.1991.   But  the  panel  was  the  one  prepared  on 19.1.1991. Part  III of  the Rules provides for ‘Appointment and Promotion’. Clause (6) thereof reads:      "Every  teacher  will  be  appointed  on      probation for  two years.  The  list  of      candidates    prepared     for    direct      appointment will  be valid  for the  one      year from  the date  of approval  of the      project by the Selection Committee." The life or duration of the panel or list was, therefore, of one year.  It, therefore,  expired on 18.1.1992 by the force of the  above-quoted rule. The Rule having been framed under Article 309  of the  Constitution, therefore,  had statutory force.  The   appellant-State  was,   therefore,  right   in contending that  continuance of the panel or list beyond one year would  be  a  violation  of  the  statutory  rule  and, therefore, illegal.  Even the  court could  not stop it from lapsing  in  exercise  of  judicial  discretion  unless  its constitutional validity  was questioned.  There is  no doubt that the  petition was filed after the damage was done, i.e. after expiry  of the  period of one year. This contention of the State is unexceptionable.      Next, it must be noted that the State Government had by the letter  of 27.5.1993  desired to  revise its reservation policy and,  therefore, had placed a general embargo against recruitment from  old waiting lists. It was also stated that rules as per the modified policy are in the process of being formed and  further appointments  will be as per the revised rules. However,  in the  present case as pointed out earlier the list  had  expired  long  back  and  had  ceased  to  be operational. The  State Government  was entitled  in law  to change  its   reservation  policy  in  consistent  with  the constitution.  If   it  was  considering  a  change  in  the reservation policy  of the State, it was not obliged to fill up the existing vacancies.      As  held  in  the  case  of  Shankarsan  Dash  even  if Vacancies are  notified for  appointment and adequate number of candidates  are found  fit, the  successful candidates do not acquire  an indefeasible  right to  be appointed, unless the relevant  rules indicate  to the  contrary. It is indeed expected of the State to act bona fide and for valid reasons in refusing  to make  the appointments  after the  selection process has  been gone through. The High Court has, however, come to  the conclusion that the State had acted arbitrarily

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and irrationally  in refusing  to make appointments from the select list. We find it difficult to subscribe to this view. In the  first place, as pointed out earlier, the select list had lapsed  on the expiry of one year. Secondly, the process of appointment  was halted  as the  reservation  policy  was intended to be amended or modified. The High Court, however, approached the matter thus:      "The panel  thus does  not appear  to be      violative of  the reservation  policy of      the State.  So far as the proposed rules      of  recruitment   are   concerned,   the      details of which have not been furnished      from which  it could  be gathered  as to      whether  any   substantial  or   drastic      deviation is  sought to be made from the      existing rules  regarding the  procedure      of recruitment  except that  training is      no   longer    to   be    a    necessary      qualification    or     condition     of      eligibility I do not want to go into the      correctness of  the policy  of the State      dispensing with  the  necessity  of  the      training as  a condition of eligibility.      However, I  have serious  doubt  whether      appointment  of  untrained  teachers  in      preference to  the trained  ones who are      already  in   panel  and  available  for      appointment can  be said to be in public      interest." It is  on this line of reasoning that the High Court came to the conclusion  that the  action of the State Government was arbitrary and  irrational. Now, as held in Shankarsan Dash’s case, a decision to adopt a different policy with respect to the reserved  vacancies  can  be  a  justifiable  cause  for halting further  appointments from  the panel or select list and such  an  action  cannot  be  condemned  on  grounds  of arbitrariness and/or  illegal discrimination.  Whether doing away with  the training  is in  public interest or otherwise would depend on the facts and circumstances of each case and that would  be a  matter to  be put in issue if the rules in that behalf  are sought  to be  challenged on  the ground of unreasonableness or  discrimination. The High Court has said in terms that it does not want to go into the correctness of that policy,  yet,  expressing  a  ‘serious  doubt’  it  has virtually condemned  the policy.  In the  instant  case  the Government  was   desirous  of  amending  or  modifying  the reservation policy  and, therefore,  it took  a decision  to suspend all  further appointments  from existing  panels  or select lists.  The ultimate  outcome of that exercise is not fully brought out on record but it is obvious that the State Government was  not acting  mala fide and merely with a view to denying  appointment to  the respondents  herein.  Merely because  notwithstanding   the   availability   of   trained personnel the  State Government  was inclined  to change the rules in  that behalf  does not  appear to be a valid ground for contending  that the  Government had  acled  mala  fide. Without knowing  the nature of change it was not open to the High  Court  to  anticipate  the  policy  and  brand  it  as unreasonable.      For the  above reasons  we are of the opinion that even if it  is assumed  that the  panel or  select list  had  not expired at  the date  of filing  of the  writ petition,  the refusal on  the part  of the Government to make appointments from the  panel or select list, vide letter dated 27.5.1993, could not  be condemned as arbitrary, irrational and or mala

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fide. We,  therefore, reverse  the view  taken by  the  High Court, set it aside and hold that the original Writ Petition was liable  to be  dismissed and we hereby dismiss the same. No order as to costs.