16 December 1996
Supreme Court


Case number: C.A. No.-016988-016988 / 1996
Diary number: 78744 / 1996






DATE OF JUDGMENT:       16/12/1996




JUDGMENT:                             With                      No. 16991 of 1996                 (C.A. @ SLP (C) No. 2602/96)                          O R D E R      Leave granted.  We have  heard learned  counsel on both the sides.      Prior to December 12, 1993, the appellant had initiated the process  of selection  to various posts in the appellant university. The UP Public Services (Reservation of Scheduled Caste, Scheduled  Tribes and Backward Classes) Act 4 of 1994 (for short,  the ‘Act’)  came into  force with  effect  from March 22,  1994. By  operation of Section 1(2), the Act came into force  from December  11, 1993, i.e., the date on which ordinance was  issued. Section  2(c) of  Act defines "public services  and   posts"  means  the  services  and  posts  in connection with  the  affairs  of  the  State  and  includes services and posts in clause (iv) which is as under:      "iv)  an   educational  institution      owned and  controlled by  the State      Government or which receives grants      in aid  from the  State Government,      including a  university established      by or  under a  Utter Pradesh  Act,      except an  institution  established      and  administered   by   minorities      referred  to   in  clause   (I)  of      Article 30 of the Constitution."      Section 3  of the  Act applies reservation in favour of Scheduled  Castes,   Scheduled  Tribes  and  other  Backward Classes, at  the stage  of direct recruitment, the following percentage prescribed therein thus:      (a) in the case of scheduled Castes     21 per cent      (b) in the case of Scheduled Tribes     02 per cent      (c) in the case of other backward          classes of citizens                 27 per cent      Section 4 of the Act casts responsibility on and thrust powers on  specified offers for compliance of the provisions of the  Act. The  State Government  may, by  notified order, entrust the  appointing authority or any officer or employee with  the  responsibility  of  ensuring  compliance  of  the



provisions of  the Act.  It is not in dispute that the State Government had  issued a  notification  dated  may  5,  1995 entrusting the  responsibility  for  implementation  of  the provisions of  the Act,  in relation  to the appointment and services of  the posts  in  the  university,  on  the  Vice- Chancellor. Thus,  the Vice-Chancellor is empowered and made responsible to implement the provisions of the Act.      Section 6 gives power to the Government to call for the records and direct enforcement of the provisions of the Act. It reads thus:      "6. Power  to call for record. - If      it comes to the notice of the State      Government,   that    any   persons      belonging to  any of the categories      mentioned  in  sub-section  (1)  of      Section  6   has   been   adversely      affected   on   account   of   non-      compliance  of  the  provisions  of      this  Act   or   the   rules   made      thereunder or  the Government order      in this  behalf by  the  appointing      authority, it  may  call  for  such      records and  take such action as it      may consider necessary."      Section 15  which is  relevant for  the purpose of this case is as under:      "15. Savings.  - (1) the provisions      of this  Act  shall  not  apply  to      cases in  which  selection  process      has  been   initiated  before   the      commencement of  this Act  and such      cases  shall   be  dealt   with  in      accordance with  the provisions  of      law and  Government orders  as they      stood before such commencement.      Explanation. -  For the purposes of      this  sub-section   the   selection      process shall  be  deemed  to  have      been  initiated  where,  under  the      relevant service rules, recruitment      is to be made on the basis of -      (i) written test or interview only,      the written  test or the interview,      as the case may be, has started, or      (ii)   both    written   test   and      interview,  the  written  test  has      started.      (2)  The  provisions  of  this  Act      shall not apply to the appointment,      to be  made under the Uttar Pradesh      Recruitment   of    Department   of      Government Servant Dying in Harness      Rules, 1974."      It is not in dispute that on the basis of the aforesaid implementation of  the provisions  of the  Act, in  February 1995, fresh advertisement came to be made for appointment of two Readers  in Chemistry.  On a  representation made by the respondents, the  Chancellor,  exercising  the  power  under Section 68  of the  U.P. State  Universities Act,  1973,  by order dated  June 6,  1995  gave  directions  to  the  vice- Chancellor to  appoint the  respondents as  Readers  in  the Chemistry Department.  On receipt of the above direction, on June 15,  1995, the  Vice-Chancellor by  the letter  to  the Chancellor (Governor) on the same date sought guidance as to how, in  the face  of the  Act, the directions issued by him



could be implemented. The Chancellor had referred the matter to  the   Law  Department   for  opinion   and   the   above communication was informed to the appellant on July 8, 1995. The respondent  filed the writ petition on July 17, 1995 for a  Mandamus  to  implement  the  directions  issued  by  the Chancellor dated  June 6,  1995. The  respondent  filed  the counter-affidavit pleading  the above  facts. The  Governor, exercising the  powers under Section 6 of the Act, cancelled the appointments  made in respect of other persons, who came to be  selected and  appointed in  violation of  the Act. It would, appear  that those  affect  persons  filed  the  writ petition in  the High  Court which  are pending disposal. We make it  clear that  we are  not concerned  with  the  above cancellation in  this appeal. Therefore, controversy thereof is kept at large.      The only  question is whether the Chancellor (Governor) is  right   in  directing   the  appellant  to  appoint  the respondents  to  the  posts  of  Readers  in  the  Chemistry Department of  the Allahabad  University. It is already seen that the  Act has  come into force with effect from December 11, 1993.  Shri Sharan,  learned counsel for the respondent, has contended that once the process of selection was started by screening  the candidates  eligible for  consideration by the Selection  Committee, the  process was  started prior to the  Act  has  come  into  force  and,  therefore,  all  the selections and  appointments should  be made  in  accordance with law applicable prior to the Act has come into force. We are unable  to agree  with the  learned counsel. Legislative intentions is  clear from  Section 15(1) that the provisions of this  Act shall  not apply  to cases  in which  selection process has  been initiated  before the  commencement of the Act. Initiation  of process  of selection has been explained in the Explanation that: For the purpose of this sub-section the selection process shall be deemed to have been initiated where, under  the relevant  service rules, recruitment is to be made  on the  basis of  - (i)  written test  or interview only, the written test or the interview, as the case may be, has started.  It is  not in  dispute that  in this case, the process of  selection to  the post  of Readers  is  only  by interview. Admittedly, the process of selection is to decide the merit  of the  candidates  by  an  interview  which  was started on  and from December 12, 1993. Thereby, the process of selection was initiated after the Act has come into force without applying the provisions of sub-section(1) of Section 3 of  the Act.  Therefore,  the  process  of  selection  and preparation of merit list was in violation of the provisions of the  Act. The  Governor  when  acted  as  Chancellor,  he discharged statutory  duty under  section 68  of  University Act, it  was in  his ex officio capacity. When he acts under the Act,  he exercises  his  constitutional  function  under Article 163 with aid and advice of the Council of Ministers. In the  later capacity,  the order  of the Chancellor issued under Section  68 was  cancelled, as  it was in violation of the Act.      In Shankarsan  Dash v.  Union of  India [(1991)  2  SCR 567], on  the basis  of combined  examination by  the  Union Public Service Commission for appointment to civil services, the  appellant   name  was  kept  in  the  select  list  for appointment as Group ‘B’ Police Service. The vacancies arose for subsequent  year, though he was occupying higher rank in the general  category, the  Government did  not appoint him. They implemented  the policy,  appointing candidates  in the lower candidates  belonging to  reserved categories  and the vacancies arose  for general  candidates were not filled up. He filed  the application  in the  Tribunal for direction to



appoint him  to the  post. The  Constitution Bench  had held that  even   for  vacancies  notified  for  appointment  and adequate number  of candidates are found fit, the successful candidates do  not acquire  any  indefeasible  right  to  be appointed which  was dismissed.  On appeal, the notification notifying applications  for recruitment  nearly amounts to a notification  to   qualified   candidates   to   apply   for recruitment. On  their selection  they do  not  acquire  any vested 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, the State has to act fairly.  The decision  not to fill up the vacancy has to be taken  bona fide for appropriate reasons. The State is to respect the  comparative merit  of the candidates reflecting in the  relevant test  and no discrimination is permitted in that behalf and normally to be appointed. It does not create any right  to an appointment. It was held that the appellant therein had  not acquired  any right to be appointed against the vacancies  arising later  on the  basis  of  any  rules. Therefore, it  was held  that he  was  not  entitled  to  be appointed. This  Court also  had  held  that  there  was  no arbitrariness whatsoever  on the  part of  the State  in not filling up the vacancies. The process of final selection was held to  have been properly taken not to fill up any further allotment of  any vacancy  arising subsequently.  The  ratio therein applies  to the  facts in this case on all force. In State of  Andhra Pradesh  v. T.  Ramakrishna  Rao  and  Ors. [(1972) 4  SCC 830], the constitution bench had held that an application for  appointment had  not acquired any right, by merely applying  for the  post  either  under  the  rule  or otherwise to  be selected  for the  post. Therein, the facts were that  Rule 5 of the A.P. Subordinate Service Rules made under Articles  234 and 237 read with proviso to Article 309 of the  Constitution was  declared ultra vires. After making amendment  to   the  rules,   recruitment  was   made.   The applications/respondents who  made  an  application  earlier have  challenged  the  subsequent  recruitment.  The  Public Service  Commission   made  two  examinations:  (1)  to  the existing vacancies  under the  amended rules  while  setting aside earlier notification; and (2) by selection. This Court had held that single examination for all the vacancies would not violate  Articles 14 and 16 of the Constitution. In that behalf the  above ratio came to be laid. In State of Harvana v. Subash  Chander Marwaha  & Ors.  [(1974) 1  SCR 165], the facts were  that under  the Punjab  Civil Service  (Judicial Branch) Service Rules, recruitment was made for the posts of subordinate judges.  Rule provides  55% of the marks. A list was prepared  of the  candidates upto  45% of  the marks  in aggregate under Rule 10, after the list was published in the Gazette, the  Government was  bound to make the selection of the candidates  strictly in  the order  in  the  lists,  and intimate the  selection to  the High  Court. When  vacancies were to  be filled  up, the  High Court  was to  send in the names in accordance with, and in the order in, the list, for appointment. The  appellant selected the first seven who had secured more than 55% marks and above in the first instance. The respondent who secured less than 55% marks and ranked 8, 9 and  13 in  the list  were filed  a writ  petition on  the ground that  15 vacancies  are existing  and that  they were entitled to  be appointed  from the  list  prepared  by  the Public Service  Commission. Though that contention was found favour with  the High  Court, this  Court had  held  that  a mandamus could  be issued  only to compel an authority to do legal duty under a statute and the aggrieved party must have a legal  right under the statute to enforce its performance.



Mere inclusion  in the  list did  not given  any right  to a candidate to  be appointed to a post of a subordinate judge. The mere  existence of  the vacancy  does not  give a  legal right to  a candidate  for appointment. It is open to decide how many  appointment shall  be made.  The mere  fact that a candidate’s name  appears in  the list will not entitle to a mandamus that  he be  appointed. The  appeal was accordingly allowed. The  ratio therein  was approved  by this  court in Shankarsan Dash’s  case. In Union Territory of Chandigarh v. Dilbagh Singh  & Ors.  [(1993) 1  SCC 154], a bench of three Judges following  Shankarsan Dash’s  case had  held that the selectee in  the list  is not  entitled to appointment. Mere inclusion in  the list  will not have any indefeasible right to be  appointed, in the absence of any rule to that effect. In that  case the selection was found to be not according to rules. The  Government had cancelled their select list. When it  was   questioned  it    held  by  this  court  that  the cancellation of  the list was bona fide and for valid reason and was  not arbitrary. In Nagar Mahapalika, Kanpur v. Vinod Kumar Srivastava  & Ors.  [AIR 1987  SC 847], the Government issued a  memo superseding  all the circulars and cancelling the select  list made for appointment. The High Court issued mandamus that  the previous list will be exhausted and fresh recruitment be  made. This  court by  a bench  of two judges have reversed  the mandamus and held that a list which has a current force  for one year would be valid and all the lists made earlier  were not  intended to  be  revived  under  the circular. Accordingly  the appeal  was allowed and the order was set  aside. The  mandamus issued  by the  High Court was reversed and  the  list  for  that  current  year  1978  was sustained. In  N.T. Bevin Katti v. Karanataka Public Service Commission &  Ors. [AIR  1990 SC  1233], the  Public Service Commission notified  on May  23, 1975  inviting applications from in  service candidates  for recruitment  to 50 posts of Tehsildars. Para  3 of the Notification specified details of the posts  reserved for  candidates belonging  to  Scheduled Castes and  Scheduled  Tribes  and  other  Backward  classes including posts set apart for Ex-Military Personnel. In case of non-availability  of sufficient  number of candidates for reserved categories  vacancies were  to be  filled up as per rules  in   force.  Subsequently   notification  was  issued amending the  pre-existing  rules,  1966.  Rule  11  of  the amended rules  provided that  in the  matter of  reservation already made  in the  case of  post and  services for  which advertisement had been issued prior to the coming into force of the  rules on  July 9,  1975  would  be  applicable.  The Government had  not accepted  the recommendation made by the Public Service  Commission and  directed them  to prepare  a fresh merit  list taking  into consideration all the amended rules giving  reservation to the candidates. Accordingly, it was made  which came  to be  challenged. This Court had held that the Government order shows that the reservation already made  for  any  category  and  the  post  or  service    and advertisement published  by issue  of the  Government  order shall be  deemed to have been validly made and would clearly indicate that  the selection  made in  accordance  with  the previous rules  was valid  and the  merit list  prepared  in accordance with the rules was legal and valid one. The State Government wrongly refused to approve the same and curtailed the  scope   of  it.  This  case  is  an  authority  on  the proposition that  recruitment should  be made  in accordance with  the   rules  as   indicated  in   the  amended  rules. Accordingly, the  appeal was  allowed and  the order  of the Government set  aside. In Babita Prasad and Ors. v. State of Bihar and Ors. [1993 Supp. (3) SCC 268], this Court had held



that  the  panel  of  indefinite  life,  the  right  of  the candidate  including   such  a   panel  do  not  create  any indefeasible right  when the Government had discontinued the select list  for valid  reason. It  was held in paragraph 25 that the  purpose of  the panel prepared in the instant case was only  to finalise  a list  of  eligible  candidates  for appointment. The panel was too long and was intended to last indefinitely barring the future generations for decades from being considered  in the  vacancies arising  much later.  In fact the  future generations  would have been kept out for a very long  period had  the panel  been permitted  to  remain effective till  exhausted. A  panel of  the type prepared in the present  case cannot  be equated  with a  panel which is prepared having  co-relation to  the existing  vacancies for anticipated vacancies  arising in  the near future and for a fixed time  and prepared  as  a  result  of  some  selection process.      It is,  thus, settled law that the process of selection must be  in accordance with the law existing as on the scale of selection. Keeping candidate in the waiting list does not confer any vested right in his favour much less indefeasible right. The  appropriate appointing  authority is not obliged to   fill    up   the    vacancies   or   to   appoint   any candidate/candidates waiting  in the  list to  any resultant vacancy, due  to the  operation of  law under  the Act.  The vice-Chancellor, therefore,  was obliged  under the  Act and vested with  duty and  right in  taking action  to have  the vacancies notified  applying Section  3(1) of  the  Act  for recruitment in accordance with law.      It is  then contended  that the retrospective operation cannot be  given to  the vacancies existing prior to the Act has come into force. We are unable to agree with the learned counsel. It  is settled  legal position  that legislature is competent to  make law with retrospective effective. The Act was applied  to existing vacancies as on the date of the Act came into force and the process of selection was not started as on  that date. There is no vested right to a vacancy of a post. Only  a person has right to be considered according to rules in  force as on the date of consideration. The process of selection started prior to that date requires to be dealt with as  per pre-existing  law. The  selection after the Act came into  force be  made by  applying Section  3(1). In the face of  Section 3  read with  Section 15(1) of the Act, any process for  selection initiated  after the  commencement of the Act,  be in  conformity with  the provisions of the Act. Necessarily, the  vacancies existing  as on  that date shall require to be filled up, applying sub-section (1) of Section 3 of  the Act and the selection should be made in accordance therewith. Any  selection made  in   a pipe could be roughly calculated from  the pipe  diameter  and  the  knowledge  of maximum steam  velocities used to avoid excess issued by the Chancellor to make appointment of the respondents is, though under the  provisions of Section 68 of the Universities Act, is in  violation of the Act since Section 3(1) has been made applicable with retrospective effect from December 11, 1993. The direction  issued by the Chancellor in that behalf is in contravention of Section 3(1) of the Act.      It is  settled legal  position that the mandamus cannot be issued  to violate  the law or to act in violation of the law. In  this case,  the direction  issued by the High Court tentamounts to  a direction  to the appellant to appoint the respondents as  per the  order issued  by the Chancellor, in violation of  the Act.  The mandamus was, therefore, clearly illegal. The incumbent Vice-Chancellor cannot be found fault with  the  implementation  of  the  Act  as  per  directions



contained in  it and  the comments  and the  strictures made against the appellants by the High Court are unwarranted and uncalled for.      The appeals  are allowed  and the High Court’s judgment and orders  stands set  aside  but,  in  the  circumstances, without  costs.   The  writ   petition   is,   consequently, dismissed. No costs.