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CASE NO.: Appeal (civil)  1062 of 2005

PETITIONER: State of M.P. & Ors

RESPONDENT: Sanjay Kumar Pathak & Ors

DATE OF JUDGMENT: 10/10/2007

BENCH: S.B. Sinha & H.S. Bedi

JUDGMENT: J U D G M E N T  W I T H

CIVIL APPEAL NOS. 1063 to 1077 OF 2005 CIVIL APPEAL NO. 5737 OF 2005 and CIVIL APPEAL NO.4754 OF 2007 [Arising out of SLP (C) NO. 9265 OF 2004]

S.B. SINHA, J :          1.      Leave granted in SLP.

 2.    The Government of India sponsored a project commonly known as  Operation Black Board during the Eighth Plan period, i.e. 1992-1997 in  terms whereof financial clearance was to be given for appointment of  Additional Teachers in all primary / middle schools which had only one  teacher in order to improve the standard of education.  With a view to  implement the said project, the State intended to appoint 7000 to 11000  teachers.

3.      Indisputably, the matter relating to recruitment of Assistant Teachers  in Madhya Pradesh is governed by Madhya Pradesh Non-Gazetted Class III  Education Service (Non-Collegiate Service) Recruitment and Promotion  Rules, 1973 (hereinafter called and referred to for the sake of brevity as  \023said Rules\024).  In terms of the said Rules, the method of recruitment was to  be by holding competitive examination followed by interview.  With a view  to expedite implementation of the project having regard to the fact that the  same was to be implemented within the Eighth Plan period, Rule 10(3) of  the Recruitment Rules was amended on or about 10.05.1993 by adding a  proviso thereto which reads, thus:

\023Provided that in any specific circumstance of the  State Government may, in consultation with the  General Administrative Department prescribe the  criteria and procedure for selection of candidates.\024

4.      For the aforementioned purpose, Selection Committees were  constituted for recruitment of Assistant Teachers in each and every district.   Selections were to be made district-wise by inviting applications from the  Employment Exchanges.  The Selection Committee was to prepare a panel  upon considering the eligibility criteria of the candidates concerned as also  upon taking viva voce list.

5.      Recruitment process was started in the State on or about 5.08.1993.   Selection process was to be started from 13.08.1993 and was to be  completed within a period of about one month, viz., 13.08.1993 to  15.09.1993.  Appointments were to be made in phases.  

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       In these appeals, we are concerned with recruitment of 64 Assistant  Teachers in Phase 3 and 66 Assistant Teachers in Phase 4.

       As per the recruitment process, interviews were held in Damoh  District for selection of Assistant Teachers from 1.09.1993 to 9.09.1993.  Questioning, however, the validity of the amendment to Rule 10(3) of the  Recruitment Rules, one \021Zila Mansevi Shikshak Sangh\022 filed an original  application before the Administrative Tribunal.  The said application was  marked as Application No. 2395 of 1993.  An interim order was passed  therein directing that no appointment should be made to the persons selected  for the appointment as Assistant Teachers in terms of the said Scheme.   When the Select List for Assistant Teachers for Damoh District was under  preparation, a telephonic information was received by the appropriate  authority as regards the interim order passed by the Tribunal.  Further  selection process was directed to be stayed pursuant thereto.  No Select List,  therefore, was prepared by the District Selection Committee.  No tabulation  was done in respect of the interviews of the candidates and in absence of  preparation of tabulation, the Select List could not have been and was not  prepared.  

       By an order dated 18.03.1994 the State Administrative Tribunal  declared the said amendment to be illegal being violative of Articles 14 and  16 of the Constitution of India.  Aggrieved thereby, the State Government  and other aggrieved candidates filed Special Leave Petitions before this  Court and by an order dated 04.01.1995, this Court stayed the said order of  the Tribunal.  It is not in dispute that on 24.04.1995 the State Government  issued offers of appointments in favour of the candidates who had been  selected in the year 1993 except those who had appeared in the interview  before the Selection Committee of the Damoh District.  By an order dated  1.12.1997 this Court in Arun Tewari v. Zila Mansevi Shikshak Sangh  [(1998) 2 SCC 332], upheld the selection process.

6.      39 Assistant Teachers filed an original application before the Tribunal  for a direction upon the State to issue appointment letters to the selected  candidates.  Before the Tribunal, Appellant \026 State specifically raised the   plea that the matter relating to recruitment of Assistant Teachers has since  been entrusted to Janpad Panchayats under the Madhya Pradesh Panchayat  Raj Adhiniyam, in the existing vacancies of the Assistant Teachers which  were since then known as Samvida Shala Shikshak Varg \026 III and Shiksha  Karmi Varg \026 III, and teachers were appointed by the Janpad Panchayats in  December, 1995.  The said application was allowed by an order dated  19.05.1999 stating:

\023In view of the above discussion it is directed that  the aborted process of selection in Damoh District  be now completed and the select list be drawn out  as per the laid down procedure and those placed on  the select list be offered appointment after  following the usual formalities for appointments  under the Government.  The entire exercise of  drawing out the select list and issue of appointment  orders shall be completed within two months of the  date of this order.  Respondents No. 3 and 4 that is  Collector and Deputy Director Education Damoh  shall be personally responsible for complying with  these directions.\024

       The Chairman of the Tribunal, however, passed a separate order  observing that the defence taken by the State that there was no vacancy for  recruitment to the post of Assistant Teacher was not acceptable.  The  Administrative Member of the Tribunal expressed his views separately.

7.      By reason of the impugned judgment, the High Court has dismissed  the writ petition filed by the appellant.  It, however, did not go into the merit  of the matter and based its decision on the purported \021peculiarity of the

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case\022.  It although took into consideration the legal question that even if a  person\022s name appears in the Select List, ordinarily, no right accrues but  proceeded to opine:

\02310. After hearing the learned counsel for the  parties, we think that the present cases have their  own peculiarity.  It is well settled in law that if the  name appears in the select list ordinarily no right  accrues.  There may be cases which would depend  on different facts and circumstances of the case.   We do not intend to dilate on that score because of  the pertaining factual matrix which are enumerated  hereunder:

(a)     The State Government had taken steps to  appoint 11000 Assistant Teachers in the entire  undivided Madhya Pradesh and appointments have  been made in number of districts before the  Tribunal granted stay.

(b)     After the final order was passed by the  Tribunal, the matter travelled to apex Court and,  thereafter, their Lordships passed the order of stay.   The State Government promptly filled up the posts  in respect of other districts. (c)     The selection process in the districts of  Damoh lingered and, therefore, the persons who  were in the select list or on the third phase could  not get the benefit. (d)     The persons who have rendered services for  a brief period long back because of the direction  given by the Tribunal to consider their cases, they  have been appointed.\024

       The High Court restricted the matter relating to grant of relief only to  the case of the original applications directing:

\023(a) The State Government shall prepare a list of  candidates who had approached the Tribunal in the  original applications in the order of merit as per  the select list. (b)     The State Government shall offer them  appointments in respect of Assistant Teachers or  equivalent posts within a reasonable period of  time. (c)     The State shall start taking action within a  period of three months from today so that bonafide  of the State would be demonstrative. (d)     The candidates who have not approached the  Tribunal could not be benefited by this order for  the simple reason that he who is not vigilant loses  his right.\024

8.      Ms. Vibha Datta Makhija, learned counsel appearing on behalf of the  appellant, would submit that the High Court committed a manifest error in  passing the impugned judgment insofar as it failed to take into consideration:

(i)     the respondents did not have any legal right to be appointed: (ii)    there exists a distinction between two categories of candidates, viz.,          those in whose favour letters of appointments had been issued but had          to be cancelled in view of the order of the Tribunal and the          respondents herein whose names did not figure in the Select List at          all. (iii)   writ petition should not have been allowed on equity alone as it must

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       flow from a legal right.

9.      Mr. Prakash Shrivastava, learned counsel appearing on behalf of the  respondents, on the other hand, would submit that the Tribunal and  consequently the High Court having passed the impugned judgments in the  peculiar fact situation obtaining therein, the matter must be considered in the  backdrop of the following facts:

(i)     the Recruitment Rules had been struck down; (ii)    a stay was operating upto 4.01.1995. (iii)   the State had issued instructions directing appointment of all the          successful candidates as a result whereof the impugned judgment had          been passed.

10.     Respondents do not dispute before us that the tabulation of the marks  obtained by them was not finalized.  For the purpose of selection, the marks  allotted to each of the candidates should be known to the members of the  Selection Committee.  Members of the Selection Committee before  preparing the Select List were entitled to undergo a consultative process so  as to enable them to arrive at a consensus in regard to the candidates who  should be appointed.  As the tabulation process itself was not completed, the  question of preparing any Select List also did not arise.   

11.     It is true that after the order of stay was vacated by this Court in Arun  Tewari (supra), the State issued a circular letter dated 24.04.1995 which  reads as under:

\023On the above subject vide referred departmental  memo, it is directed that of all those teachers  whose services were terminated should be  reinstated in compliance with the judgment of the  Hon\022ble Court.  In connection with this as per  reconsidered decision taken after obtaining opinion  of the Advocate General appointment should be  given to all such persons who have been selected  legally under operation black board, in accordance  with the rules and after compliance of all the  formalities.  Remaining condition shall remain  unchanged.\024

12.     Recruitment to the posts of Assistant Teacher is governed by statutory  rules.  Rule 10 of the Rules was amended only for the purpose of  implementation of the Scheme of the Central Government \023Operation Black  Board\024.  It is trite law that while the recruitment process is governed by the  Rules, the same should be scrupulously complied with.  The State, having  regard to the ultimate decision rendered by this Court, was bound to reinstate  those whose services had been terminated and appoint those who had been  selected legally.  The condition of selection was to remain unchanged.  One  of the conditions for recruitment was, therefore, selection of the candidates.

13.     The Tribunal as also the High Court did not call for the documents  pertaining to the selection process.  No finding of fact has been arrived at  that the respondents herein were bound to be selected and consequently  appointed.  Whether all of them had fared better than the other candidates  who had not approached the Tribunal had not been found.  As the selection  process itself was not complete, there was nothing before the Tribunal as  also the High Court to indicate that they had acquired legal right of any kind  whatsoever.  Even where, it is trite, the names of the persons appeared in the  selection list, the same by itself would not give rise to a legal right unless the  action on the part of the State is found to be unfair, unreasonable or mala  fide.  The State, thus, subject to acting bona fide as also complying with the  principles laid down in Articles 14 and 16 of the Constitution of India, is  entitled to take a decision not to employ any selected even from amongst the  Select List.  Furthermore, we have noticed hereinbefore, that selections were  made in 4 phases.  It is not the contention of the respondents that the State

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Government acted malafide.  The dispute, as noticed hereinbefore related to  appointment in Phase 3 and Phase 4 only.

14.     If the action of the State was not bonafide and/ or otherwise unfair, in  our opinion, the Tribunal and consequently the High Court could exercise  their jurisdiction to issue a writ of or in the nature of Mandamus, as has been  sought to be done, but neither any such plea was raised nor the same was  otherwise found to be existing.

15.     It is well-known that even selected candidates do not have legal right  in this behalf.  [See Shankarasan Dash v. Union of India - 1991 (2) SCR  567, Asha Kaul (Mrs.) and Another v. State of Jammu and Kashmir and  Others (1993) 2 SCC 577]        16.     In K. Jayamohan v. State of Kerala and Another [(1997) 5 SCC 170],  this court held: \0235. It is settled legal position that merely because a  candidate is selected and kept in the waiting list, he  does not acquire any absolute right for  appointment. It is open to the Government to make  the appointment or not. Even if there is any  vacancy, it is not incumbent upon the Government  to fill up the same. But the appointing authority  must give reasonable explanation for non-  appointment. Equally, the Public Service  Commission/recruitment agency shall prepare  waiting list only to the extent of anticipated  vacancies. In view of the above settled legal  position, no error is found in the judgment of the  High Court warranting interference.\024         [See also Munna Roy v. Union of India and Others, (2000) 9 SCC  283]

17.     In All India SC & ST Employees\022 Association and Another v. A.  Arthur Jeen and Others [(2001) 6 SCC 380], it was opined: \02310. Merely because the names of the candidates  were included in the panel indicating their  provisional selection, they did not acquire any  indefeasible right for appointment even against the  existing vacancies and the State is under no legal  duty to fill up all or any of the vacancies as laid  down by the Constitution Bench of this Court,  after referring to earlier cases in Shankarsan Dash  Vs. Union of India. Para 7 of the said judgment  reads thus :- "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. This correct  position has been consistently followed by this

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Court, and we do not find any discordant note in  the decisions in State of Haryana vs. Subhash  Chander Marwaha, Neelima Shangla vs. State of  Haryana or Jatendra Kumar vs. State of Punjab."

18.     The principles laid down in the aforementioned cases have been  upheld by this Court in Food Corporation of India and Others v. Bhanu Lodh  and Others [(2005) 3 SCC 618] stating:

\02314. Merely because vacancies are notified, the  State is not obliged to fill up all the vacancies  unless there is some provision to the contrary in  the applicable rules. However, there is no doubt  that the decision not to fill up the vacancies, has to  be taken bona fide and must pass the test of  reasonableness so as not to fail on the touchstone  of Article 14 of the Constitution. Again, if the  vacancies are proposed to be filled, then the State  is obliged to fill them in accordance with merit  from the list of the selected candidates. Whether to  fill up or not to fill up a post, is a policy decision,  and unless it is infected with the vice of  arbitrariness, there is no scope for interference in  judicial review\005\024

19.     In Pitta Naveen Kumar and Others v. Raja Narasaiah Zangiti and  Others (2006) 10 SCC 261], this Court observed :                \023The legal position obtaining in this behalf is not  in dispute.  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\005\024   

       In a situation of this nature, no appointment could be made by the  State in absence of the Select List.  The State could not substitute itself for  the Selection Committee.   

20.     Furthermore, ordinarily, the writ court should not, in absence of any  legal right, act on the basis of sympathy alone.

       In Ramakrishna Kamat and Others v. State of Karnataka and Others  [(2003) 3 SCC 374] albeit in the light of right of regularization in service,  this Court opined:

\023\005It is clear from the order of the learned single  Judge and looking to the very directions given a  very sympathetic view was taken. We do not find  it either just or proper to show any further  sympathy in the given facts and circumstances of  the case. While being sympathetic to the persons  who come before the court the courts cannot at the  same time be unsympathetic to the large number of  eligible persons waiting for a long time in a long  (SIC) seeking employment\005\024

       [See also Maruti Udyod Ltd.  v. Ram Lal and Others, (2005) 2 SCC  638, State of Bihar & Ors. v. Amrendra Kumar Mishra, 2006 (9) SCALE  549, Regional Manager, SBI v. Mahatma Mishra, 2006 (11) SCALE 258 and

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State of Karnataka v. Ameerbi & Ors. 2006 (13) SCALE 319]

21.     For the reasons aforementioned, the impugned judgment cannot be  sustained which is set aside accordingly.  However, keeping in view the  peculiar facts and circumstances of the case, we direct that the respondents  shall be entitled to relaxation of age in the event they intend to take part in  the next selection process.  The State is also directed to pay a sum of Rs.  10,000/- each to the respondents concerned.  The appeals are allowed.  No  costs.