REPORTABLE

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 11360­11363 OF 2018

(Arising out of  SLP (Civil) Nos.29668­29671/2017

DINESH KUMAR KASHYAP & ORS. ETC. …APPELLANT(S)

Versus

SOUTH EAST CENTRAL RAILWAY & ORS. ETC. …RESPONDENT(S)

WITH

CIVIL APPEAL NO. 11364 OF 2018

(@SLP (C) No. 6165 OF 2018)

J U D G M E N T

Deepak Gupta, J.

Leave granted.

2.Respondent   No.1,   South   East   Central   Railway   (for

short the SECR) issued an advertisement on 15.12.2010

inviting applications for filling up 5798 posts in the pay

scale of Rs.5200­Rs. 20,200 + Grade Pay of Rs.1800/­ in

Raipur, Bilaspur and Nagpur divisions and workshops.  The

claim of the original writ petitioners who filed applications

1

before the Central Administrative Tribunal (for short CAT)

was that as per the existing instructions  the select list was

prepared with 20% extra candidates.  Therefore, the result

of 6995 candidates was declared who were successful.  The

appellants fall in the category of extra 20%.  The SECR did

not   make   the   appointments   from   these   20%   extra

candidates   though   624   posts   remained   unfilled   in   the

general category itself.  The appellants who fall in the 20%

category of extra candidates filed applications before the

CAT praying that the SECR be directed to fill in the unfilled

vacancies from this list of 20% candidates.  This application

was rejected by the Tribunal.  The writ petition filed by the

appellants was also rejected.  Hence these appeals.

3.To understand the issue at hand it would be pertinent

to refer to the instructions relied upon by the appellants.

The relevant portion of the instruction reads as follows :­

“……..

3.The issue has been examined and it has now been

decided   by   the   Board   that   the   number   of   candidates

called for document verification shall be 20% over and

above the number of vacancies.  

4.This   shall,   however,   be   done   with   the   following

proviso.

(i)It has to be brought out clearly in the Call Letter to

the   candidate   that   the   purpose   of   calling   20%

2

candidates   over   and   above   the   number   of

vacancies at the time of document verification is

primarily to avoid shortfall in the panel and that

merely   calling   a   candidate   for   document

verification does not, in any way, entitle him/her

to an appointment in the railways.

(ii)Even   where   the   number   of   candidates   available

after document verification   exceeds   the   number   of

vacancies, the panel finalized by   RRC   (Railway

Recruitment   Cell)   shall   be   equal   to   the   number   of  

vacancies only.  In case, the Railway administration

after giving stipulated joining time to the selected

candidates, certifies that certain   number   of

candidates have not turned up within the  specific

period, another panel equal to the number of candidates 

finally not turning up for taking appointment will be

supplied by  RRC.  Before calling for replacement in

­lieu of the candidates finally not turning up for taking

appointment CPO shall personally satisfy   himself   that

the   procedure   for   cancellation   of   the   offer   of  

appointment   to   the   originally   empanelled

candidates has been strictly   followed.     Under   no

circumstances, the number of  candidates covered in

the original as well as replacement panels shall

exceed the number of vacancies indented by the railway;

and 

(iii)Replacement   panels   shall   include   only   such

number of reserved / un­reserved   candidates   as   have

not turned up as per original  panel.

…….”

4.From a reading of the order passed by the CAT it is

apparent  that  the  stand taken by the  SECR  before the

Tribunal was that the purpose of declaring the result of 20%

extra candidates is to ensure that in the eventuality of some

of the candidates who are higher up in merit not turning up

for document verification or being declared unfit in medical

examination   the   unfilled   posts   can   be   filled   from   the

3

reserved panel.   It was the stand of the SECR that the

purpose of calling 20% candidates was to primarily avoid

shortfall in the vacancies filled.  It was also submitted that

merely calling the candidate for document verification does

not give any vested right to the candidate to be appointed.

It was further submitted that after 10.01.2014 the system of

maintaining   replacement   panels   has   been   discontinued.

According to the Tribunal the appellants had no right to be

appointed.

5.Aggrieved, the appellants approached the High Court

of Chhattisgarh in which they also took another plea that

persons from the 20% extra replacement panel had been

offered appointment by the Railways in many other zones

and it was only in the 3 divisions of Bilaspur, Raipur and

Nagpur  that  this  was not done.   The  writ petition was

dismissed holding that the appellants herein had no right

and also that merely because some appointments have been

made in other zones from the replacement panel, it would

not create any right in the appellants.

4

6.The main issue which arises before us is whether the

SECR could have ignored the 20% extra panel despite the

letter dated 02.07.2008 without giving any cogent reason for

the same.  No doubt, it is true, that mere selection does not

give   any   vested   right   to   the   selected   candidate   to   be

appointed.  At the same time when a large number of posts

are lying vacant and selection process has been followed

then the employer must satisfy the court as to why it did

not resort to and appoint the selected candidates, even if

they   are   from   the   replacement   panel.     Just   because

discretion is vested in the authority, it does not mean that

this discretion can be exercised arbitrarily.  No doubt, it is

not incumbent upon the employer to fill all the posts but it

must give reasons and satisfy the court that it had some

grounds for not appointing the candidates who found place

in the replacement panel.   In this behalf we may make

reference to the judgment of this Court in R.S. Mittal   vs.

Union of India (UOI)

1

, wherein it was held as follows:­ 

10.   ……………………..

1 (1995) Suppl.2 SCC 230

5

        .…………………….

It is no doubt correct that a person on the select panel

has no vested right to be appointed to the post for which

he has been selected. He has a right to be considered for

appointment.   But   at   the   same   time,   the   appointing

authority   cannot   ignore   the   select   panel   or   decline   to

make the appointment on its whims. When a person has

been   selected   by   the   Selection   Board   and   there   is   a

vacancy which can be offered to him, keeping in view his

merit position, then, ordinarily, there is no justification to

ignore him for appointment. There has to be a justifiable

reason to decline to appoint a person who is on the select

panel. In the present case, there has been a mere inaction

on the part of the Government. No reason whatsoever, not

to talk of a justifiable reason, was given as to why the

appointments   were   not   offered   to   the   candidates

expeditiously   and   in   accordance   with   law.   The

appointment   should   have   been   offered   to   Mr   Murgad

within a reasonable time of availability of the vacancy and

thereafter   to   the   next   candidate.   The   Central

Government’s   approach   in   this   case   was   wholly

unjustified.”

7.Our   country   is   governed   by   the   rule   of   law.

Arbitrariness is an anathema to the rule of law.  When an

employer invites applications for filling up a large number of

posts, a large number of unemployed youth apply for the

same.   They spend time in filling the form and pay the

application fees.  Thereafter, they spend time to prepare for

the examination.  They spend time and money to travel to

the place where written test is held.   If they qualify the

written test they have to again travel to appear for the

interview and medical  examination  etc.   Those  who are

6

successful and declared to be passed have a reasonable

expectation   that   they   will   be   appointed.     No   doubt,   as

pointed out above, this is not a vested right.  However, the

State must give some justifiable, non­arbitrary reason for

not filling up the post.  When the employer is the State it is

bound to act according to Article 14 of the Constitution.  It

cannot without any rhyme or reason decide not to fill up the

post.  It must give some plausible reason for not filling up

the posts.   The courts would normally not question the

justification but the justification must be reasonable and

should not be an arbitrary, capricious or whimsical exercise

of discretion vested in the State.  It is in the light of these

principles that we need to examine the contentions of the

SECR.

8.On behalf of the SECR it has been contended that

before calling for replacement candidates the CPO was to

satisfy himself that the procedure for cancellation of the

order of appointment of the original empanelled candidates

has been strictly followed.  It is urged that since this was

not   done   the   appellants   could   not   be   appointed.     This

7

argument holds no merit.   There is no indication in the

pleadings that the vacancies were not to be filled up.  If an

official of the Respondent No. 1 fails to do his duty the

appellants cannot suffer for the same.  They are not at fault.

9.On behalf of the respondents it was urged before us

that after the selection process in question 2 more selection

processes were started in 2012 and 2013.   Resultantly,

three recruitment cycles were running concurrently and,

therefore, the vacancies were filled up in the subsequent

selections.  This argument deserves to be rejected since it

was not even raised before the Tribunal.  Furthermore, the

rights of the appellants who had appeared in the selection

pursuant to the notification of 2010 could not be taken

away by the selection processes started much later.  They

cannot be made to suffer for the delays on the part of the

SECR.

10.The fact that three simultaneous selection processes

were undertaken, itself proves that the Respondent No. 1

wanted   to   fill   up   all   the   posts   and   did   not   want   any

vacancies to be left unfilled.  This negates the plea of the

8

Respondent No. 1 that it was not necessary to fill up the

vacant posts.

11.It has been urged before us that the validity of the

panel was only for two years and since the last merit list

was   published   for   March   2014,   validity   of   the   list   has

expired in March 2016.   This submission is only to be

rejected.   The appellants herein who approached the CAT

and the High Court with promptitude cannot suffer only

because the matter was pending in Court.

12.Another submission raised on behalf of the SECR is

that the appellants have obtained lower marks than the cut­

offs prescribed in the selection processes held in the year

2012 and 2013.   This amounts to comparing apples to

oranges.     Every   selection   process   has   a   different

examination   with   different   level   of   assessment.     By   no

stretch of imagination can comparison be made between the

three different selection processes.  

13.Another argument raised is that recruitment policy is

an executive decision and the courts should not question

the efficacy of such policy.  Neither the appellants nor this

9

Court is questioning the efficacy of the policy contained in

the letter dated 02.07.2008.  All that has been done is to

ensure implementation of the policy by the Respondent No.

1, especially when it has failed to give any cogent reason to

justify   its   action   of   not   calling   for   candidates   from   the

replacement list of extra 20% candidates.

14.In view of the above, the appeals are allowed.   The

judgment of the High Court and CAT, Jabalpur Bench are

set aside.  The appellants are entitled to the benefit of the

letter dated 02.07.2008.   While allowing the appeals we

issue the following directions:­

(i)The benefit of this judgment shall only be

available to those appellants who had approached the

CAT;

(ii)The appellants shall not be entitled to any

back wages;

(iii)The   appellants   shall,   for   the   purpose   of

seniority and fixation of pay be placed immediately

above   the   first   selected   candidates   of   the   selection

process   which   commenced   in   the   year   2012   and,

immediately below the candidates of the selection list

of 2010 in order of seniority;

(iv)The appellants shall be entitled to notional

benefits from the date of such deemed appointment

only for the purposes of fixation of pay and seniority.

10

15.The Respondent No. 1 is directed to comply with the

judgment and offer appointment to the eligible appellants

within a period of 3 months from today.

16.All pending application(s), shall also stand disposed of

in the aforesaid terms.

………………………..J.

(KURIAN JOSEPH)

………………………..J.

(DEEPAK GUPTA)

New Delhi

November 27, 2018

11

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 11360-11363 OF 2018

(Arising out of S.L.P (C) NOS. 29668-29671 OF 2017)

Dinesh Kumar Kashyap & Ors. etc. ........Appellants

Versus

South East Central Railway & Ors. etc. ........Respondents

WITH

C.A.NO. 11364 of 2018

(Arising out of S.L.P (C) No. 6165 of 2018)

J U D G M E N T

Hemant Gupta, J.

I have gone through the Judgment authored by my

learned brother Justice Deepak Gupta. Respectfully, I am

not able to agree with the views expressed therein. My

views are given hereunder:

12

2.The appellants are aspirants for appointment to the

Group-D posts for which an advertisement was issued by

the South East Central Railways for 5540 General category

posts on 15.12.2010. The advertisement contemplated

that 20% of the candidates would be called for documents

verification as the extra candidates in terms of the

instructions issued by the Railway Board on 02.07.2008

for placing the candidates in the extra list. The relevant

conditions contained in the aforesaid circular read as

under:

“3.The issue has been examined and it

has now been decided by the Board that the

number of candidates called for document

verification shall be 20% over and above the

number of vacancies.

4.This shall, however, be done with the

following proviso.

(i)It has to be brought out clearly in the

Call Letter to the candidate that the purpose

of calling 20% candidates over and above

the number of vacancies at the time of

document verification is primarily to avoid

shortfall in the panel and that merely calling

a candidate for document verification does

not, in any way, entitle him/her to an

appointment in the railways.

(ii)Even where the number of

candidates available after document

verification exceeds the number of

vacancies, the panel finalized by RRC

(Railway Recruitment Cell) shall be equal to

number of vacancies only. In case, the

Railway Administration after giving stipulated

13

joining time to the selected candidates,

certifies that certain number of candidates

have not turned up within the specified

period, another panel equal to the number of

candidates finally not turning up for taking

appointment will be supplied by RRC. Before

calling for replacement in-lieu of the

candidates finally not turning up for taking

appointment CPO shall personally satisfy

himself that the procedure for cancellation of

the offer of appointment to the originally

empanelled candidates has been strictly

followed. Under no circumstances, the

number of candidates covered in the original

as well as replacement panels shall exceed

the number of the vacancies indented by the

railway; and

(iii)Replacement panels shall include

only such number of reserved/un-reserved

candidates as have not turned up as per

original panel.”

(emphasis supplied)

3. The process of appointment particularly in respect of

extra candidates has been revised when Railway Board

issued a circular No.6/RBE/2014 dated 10.01.2014. The

said circular has done away with the procedure of

replacing candidates as contemplated in the earlier

circular dated 02.07.2008.

4.As per the information contained in Annexure P-2, as

many as 509775 applications were received in response to

the advertisement issued on 15.12.2010 and out of which

162229 candidates appeared for the written test. After

14

qualifying the written test, 10380 general candidates were

called for physical efficiency test. Since the appellants are

general category candidates, number of the candidates

from the other categories called for physical efficiency test

is not mentioned in the affidavit. The cut off marks in the

written test was 40%. As many as 7697 general category

candidates qualified in the physical efficiency test. The

percentage of cut off marks obtained for document

verification in respect of the general category is 40.98%.

The appointments against the posts advertised were

made on 11.3.2013; 9.7.2013 and in March 2014.

5.The appellants, who were not appointed against the

Group-D posts against the aforesaid advertisement

process, filed Original Applications under section 19 of the

Administrative Tribunal Act, 1985 before the Central

Administrative Tribunal, Jabalpur in the year 2014.

6.Such nine connected Original applications were

dismissed by the Tribunal on 13.02.2015 inter-alia, holding

as under:

“The right of candidates in 20% extra list

begins only after a demand is made for

replacement panel to Railway Recruitment

15

Cell after duly following aforesaid procedure.

The procedure for working out requirement

of replacement panel is not part of either the

employment notification or selection

procedure. The right of applicants for

consideration starts only after certain

appointment orders of originally empanelled

candidates are cancelled and thereafter a

demand is raised for replacement panel.

Since no demand has been made in view of

the procedure specified in notification dated

2.07.2008 (Annexure R-4) no right for

consideration of the applicants has either

acquiesced or been infringed.”

7.The Writ Petition filed by the appellants before

Chhattisgarh High Court remained unsuccessful vide

judgment dated 05.08.2015. The Court held as under:

“The only question for our consideration is

that if the appellants were not in the original

list of selected candidates on higher merit

and were to be considered against non-

joining vacancies or medical disqualification

of selected candidates, then the procedure

prescribed in the Railway Board’s letter

02.07.2008 was required to be followed by

preparation of a replacement panel. The

Tribunal has arrived at a finding of fact that

no process for initiation of the procedure

under letter dated 02.07.2008 was ever

commenced by the Respondents to fill up

non-joining vacancies from any replacement

panel. A candidate outside and beyond the

merit list, has no vested legal right to such

appointment as a matter of right because

vacancies may exist. We do not find any

reason to differ with the conclusions arrived

at by the Tribunal”.

16

8.Before this Court, learned counsel for the appellants

relies upon the judgment reported as R.S. Mittal v.

Union of India, 1995 Supp (2) SCC 230, to contend that

though the appellants have no vested right to seek

appointment but the respondents cannot act in arbitrary

manner to deny the benefit of right of appointment as the

State has to act in a non-discriminatory and non-arbitrary

manner. Therefore, the denial of appointment to the

appellants is not sustainable. It is also argued that out of

5540 posts in the general category as many as 624 posts

have remained unfilled. Therefore, such posts could be

very well filled up by the candidates who are in the

category of replacement candidates (extra list) such as

the appellants.

9.In the counter affidavit, it has been pointed out that

two separate appointment processes were also initiated,

one on 25.08.2012 to fill up 2017 posts of the general

category and another on 14.12.2013 to fill up 1195

general category posts. In the said selection processes,

2839 candidates have been empanelled as against 3212

posts advertised. Such candidates have already joined. It

17

is also averred that three recruitment cycles i.e. one in

respect of which appellants were the candidates and the

two other recruitment processes were almost running

concurrently. It is inter-alia, mentioned in the counter

affidavit as under:

“iii.In the instant case Replacement

Panels were not issued primarily as there was

no demand for issue of Replacement Panels

from the Divisions/Units. While the

Recruitment process to the Employment

Notification No. SECR/02/2010 was

underway, with the approval of Railway

Board, two more Notifications under No.

SECR/03/2012 dated 25.08.2012 for 2215

(198 Physically Handicapped + 2017 Non-PH)

posts and SECR/04/2013 dated 14.12.2013

for 1206 (11 Physically Handicapped + 1195

Non-PH) posts were issue.

iv. Against the above two Employment

Notifications, SECR/03/2012 dated

25.08.2012 and SECR/04/2013 dated

14.12.2013, 1977 and 862 Non-PH

candidates have been empanelled

respectively. As such a total of 2839 Non-PH

candidates have been empanelled against

two subsequent cycles of Employment

Notifications.

v. Regarding the claim of the appellants

and similarly placed candidates (who are

candidates falling in 20% extra candidates

zone against employment Notification No.

SECR/02/2010) for issue of replacement

panels against around 600 candidates who

did not join, it is submitted that the effect of

non-joining of 600 odd candidates was not

felt since in a short time margin 2839 Non-PH

18

candidates were empanelled and the panels

were supplemented to the Divisions/Units.

vii.Hence it goes without saying that the

2839 empanelled candidates against two

subsequent employment notifications

SECR/03/2012 and SECR/04/2013, are far

superior in merit as compared to the

appellants who are candidates falling in 20%

extra zone against employment notification

No. SECR/02/2010.

viii.As mentioned above two more cycles

of recruitments were going on parallel to the

Employment Notification No. SECR/02/2010,

the necessity of replacement panels was not

felt and not asked for as such.”

10.In this factual basis, firstly, it needs to be examined

as to what is the status of the appellants who were called

for document verification over and above the number of

posts advertised. The circular dated 02.07.2008 is to the

effect that 20% candidates are to be called to avoid the

shortfall in the panel and that merely calling a candidate

for document verification does not, in any way, entitle

him/her to an appointment in the railways. It is also

contemplated that replacement panel shall include only

such number of reserved / unreserved candidates as have

not turned up as per original panel. Therefore, the 20%

extra candidates were called to substitute the candidates

19

who do not report within the joining time granted to the

selected candidates. Such candidates at best can be said

to be the candidates in the waiting list of the candidates

to be called for appointment if the selected candidates do

not join for one or the other reason.

11.The next question is as to whether a candidate

acquires any right to appointment being in the merit list.

Such question has been examined in number of

judgments time and again by this Court. In a judgment

reported as State of Haryana v. Subash Chander

Marwaha, (1974) 3 SCC 220, it has been held that the

State has a right not to appoint a candidate even if his

name appears in the merit list. The Court held as under: -

“ 7. In the present case it appears that about

40 candidates had passed the examination

with the minimum score of 45%. Their names

were published in the Government Gazette

as required by Rule 10(1) already referred to.

It is not disputed that the mere entry in this

list of the name of candidate does not give

him the right to be appointed. The

advertisement that there are 15 vacancies to

be filled does not also give him a right to be

appointed. It may happen that the

Government for financial or other

administrative reasons may not fill up any

vacancies. In such a case the candidates,

20

even the first in the list, will not have a right

to be appointed. The list is merely to help the

State Government in making the

appointments showing which candidates

have the minimum qualifications under the

Rules. The stage for selection for

appointment comes thereafter, and it is not

disputed that under the Constitution it is the

State Government alone which can make the

appointments. …..”

12.In a Judgment reported as Jatinder Kumar v. State

of Punjab, (1985) 1 SCC 122, this Court held that the

process for selection and selection for the purpose of

recruitment against anticipated vacancies does not create

a right to be appointed to the post which can be enforced

by a mandamus. The Court held as under: -

“ 12. …... This, however, does not clothe the

appellants with any such right. They cannot

claim as of right that the Government must

accept the recommendation of the

Commission. If, however, the vacancy is to

be filled up, the Government has to make

appointment strictly adhering to the order of

merit as recommended by the Public Service

Commission. It cannot disturb the order of

merit according to its own sweet will except

for other good reasons viz. bad conduct or

character. The Government also cannot

appoint a person whose name does not

appear in the list. But it is open to the

Government to decide how many

appointments will be made. The process for

21

selection and selection for the purpose of

recruitment against anticipated vacancies

does not create a right to be appointed to

the post which can be enforced by a

mandamus. We are supported in our view by

the two earlier decisions of this Court in A.N.

D'Silva v. Union of India AIR 1962 SC 1130

and State of Haryana v. Subash Chander

Marwaha (1974) 3 SCC 220. The contention

of Mr Anthony to the contrary cannot be

accepted.”

13.In Shankarsan Dash v. Union of India , (1991) 3

SCC 47, a Constitution Bench of this Court held that the

notification for an appointment 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. It was held as under:

“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

22

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 Court, and we do not find any discordant

note in the decisions in State of

Haryana v. Subash Chander Marwaha (1974)

3 SCC 220, Neelima Shangla v. State of

Haryana (1986) 4 SCC 268, or Jatindra

Kumar v. State of Punjab (1985)1 SCC 122“.

14.In a Judgment reported as S.S. Balu v. State of

Kerala, (2009) 2 SCC 479, it was held that the State as an

employer has a right to fill up all the posts or not to fill

them up. A candidate will have no legal right for claiming

a writ in the nature of mandamus unless there is

discrimination or arbitrariness in regard to the filling up of

the vacancies. The Court held as under:

“12. 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 v. Raja Narasaiah Zangiti [(2006) 10

SCC 261. 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 candidate

concerned will have no legal right for

obtaining a writ of or in the nature of

mandamus. (See Batiarani Gramiya

23

Bank v. Pallab Kumar (2004) 9 SCC 100.

In Shankarsan Dash v. Union of India (1991)

3 SCC 47 a Constitution Bench of this Court

held: (SCC pp. 50-51, para 7)

“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.”

* * *

14. In Pitta Naveen Kumar v. Raja Narasaiah

Zangiti [(2006) 10 SCC 261, this Court held:

(SCC p. 273, para 32)

“32. … 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

24

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.”

15.In another judgment reported in Kulwinder Pal

Singh Vs. State of Punjab, (2016) 6 SCC 532, this Court

held that the name of a candidate may appear in the

merit list but he has no indefeasible right to seek an

appointment. It was held as under:

“10. It is fairly well settled that merely

because the name of a candidate finds place

in the select list, it would not give him

indefeasible right to get an appointment as

well. The name of a candidate may appear in

the merit list but he has no indefeasible right

to an appointment vide Food Corporation of

India v. Bhanu Lodh (2005) 3 SCC 618, All

India SC & ST Employees' Assn. v. A. Arthur

Jeen (2001) 6 SCC 380 and UPSC v. Gaurav

Dwivedi (1999) 5 SCC 180.

11. This Court again in State of

Orissa v. Rajkishore Nanda (2010) 6 SCC 777,

held as under: (SCC p. 783, paras 14 & 16)

“14. A person whose name appears in the

select list does not acquire any

indefeasible right of appointment.

Empanelment at best is a condition of

eligibility for the purpose of appointment

and by itself does not amount to selection

or create a vested right to be appointed.

The vacancies have to be filled up as per

the statutory rules and in conformity with

the constitutional mandate.

25

* * *

16. A select list cannot be treated as a

reservoir for the purpose of

appointments, that vacancy can be filled

up taking the names from that list as and

when it is so required.”

12. In Manoj Manu v. Union of India (2013)

12 SCC 171, it was held that (SCC p. 176,

para 10) merely because the name of a

candidate finds place in the select list, it

would not give the candidate an indefeasible

right to get an appointment as well. It is

always open to the Government not to fill up

the vacancies, however such decision should

not be arbitrary or unreasonable. Once the

decision is found to be based on some valid

reason, the Court would not issue any

mandamus to the Government to fill up the

vacancies. As noticed earlier, because

twenty-two other candidates were declared

successful by the Supreme Court pertaining

to the selection of the years 1998, 1999,

2000 and 2001 as Civil Judges (Junior

Division), they were to be accommodated, as

rightly resolved by the Administrative

Committee in the meeting dated 6-7-2011.

The three resultant vacancies of the year

2007-2008 stood consumed with the joining

of the said seventeen candidates and the

same could not be filled up from the select

list of that year. The decision of the

Administrative Committee observing that the

three resultant vacancies stood consumed is

based on factual situation arising there and

cannot be said to be arbitrary.”

16.The stand of the Railways before the Tribunal was

that the 20% extra candidates were called to take care for

eventualities such as the unfitness of the candidates at

26

the stage of medical examination or not turning up of the

candidates for document verification etc. It is also averred

that in spite of vacancies remaining unfilled due to non-

joining of selected candidates, no appointment from the

extra candidates can be claimed in view of the

instructions of the Railway Board. The stand of Railways in

reply before the Tribunal was not that there was

simultaneous selection process for Group-D posts and for

which 2839 candidates were appointed but the fact

remains that such an averment has been made before this

Court and such an assertion has not been controverted.

17.The judgment in R.S.Mittal case (supra) deals with

appointment of members of the Income Tax Appellate

Tribunal by a Selection Committee chaired by a Judge of

this Court. The Central Government has not passed any

order on the recommendation of such Selection

Committee. The said Judgment has been explained in

another judgment reported as Union of India v. Kali

Dass Batish, (2006) 1 SCC 779. This Court held as under:

“20. The respondents have relied on the

judgments of this Court in R.S. Mittal v. Union

of India 1995 Supp (2) SCC 230 in support of

27

their contentions. In our view, the said

authority hardly advances their case. In the

first place, all that the authority says is that

where a Selection Board headed by a sitting

Judge of the Supreme Court had

recommended certain candidates for

appointment as members of ITAT, it was not

open to the Government of India to sit on the

said recommendation without taking action.

That was not a case where a decision taken

not to appoint a candidate for good reason

was concurred in by the Chief Justice of

India.”

18.However, in the present case, the appellants were

called in for the verification of documents as extra

candidates to replace the candidates selected who do not

join for one or the other reason. Such candidates were

called to meet out the necessity to fill up of posts if the

meritorious selected candidates do not join. In terms of

Shankarsan Dash case (supra), the State has a right not

to appoint candidates even if they are in merit list. The

appellants do not possess indefeasible right of

appointment. It is not the case, that any candidate lower

in merit has been appointed or the appointments have

been made by pick and choose method ignoring merit.

The reason given by the Railways in the counter affidavit

28

is that the requirement to fill 624 posts was not felt in

pursuance of an advertisement in question as there was

two simultaneous selection processes in which 2839

candidates were appointed. Such reason cannot be said to

be wholly arbitrary which warrant a mandate to the

respondents to appoint the appellants who are not in

merit list but at best in the waiting list. The State has right

not to fill up any vacancy advertised. The stand that the

requirement to fill up 624 vacant posts was not felt cannot

be said to be arbitrary warranting a mandamus to appoint

the appellants. The State cannot be directed to appoint

candidates, when it does not require the posts to be filled

up. The decision not to fill up vacancies has been taken for

appropriate reasons and is neither arbitrary nor

discriminatory.

19.Still further, in exercise of power of Judicial Review,

this Court is not to substitute the decision of the Railways

and to direct candidates in the waiting list to be

appointed. In three Judge Bench judgment reported as

Kali Dass Batish case (supra), it has been held that

mere inclusion of a candidate's name in the selection list

29

gave him no right, and if there was no right, there could

be no occasion to maintain a writ petition for enforcement

of a non-existing right. It has been also held that however

vide the power of judicial review under Article 226 or 32 of

the Constitution, there is self-recognised limit to exercise

such power. The Court held as under: -

“15. In this matter, the approach adopted by

the Jharkhand High Court commends itself to

us. The Jharkhand High Court approached the

matter on the principle that judicial review is

not available in such a matter. The Jharkhand

High Court also rightly pointed out that mere

inclusion of a candidate's name in the

selection list gave him no right, and if there

was no right, there could be no occasion to

maintain a writ petition for enforcement of a

non-existing right.

* * *

17. In K. Ashok Reddy v. Govt. of India (1994)

2 SCC 303, this Court indicated that however

wide the power of judicial review under Article

226 or 32 there is a recognised limit, albeit

self-recognised, to the exercise of such power.

This Court reiterated a passage from Craig's

Administrative Law (2nd Edn., p. 291), vide

SCC p. 315, para 21, as under:

“The traditional position was that the

courts would control the existence and

extent of prerogative power, but not the

manner of exercise thereof. … The

traditional position has however now

been modified by the decision in GCHQ

30

case [Council of Civil Service

Unions v. Minister for the Civil Service,

1985 AC 374 : (1984) 3 All ER 935 :

(1984) 3 WLR 1174 (HL)] . Their Lordships

emphasised that the reviewability of

discretionary power should be dependent

upon the subject-matter thereof, and not

whether its source was statute or the

prerogative. Certain exercises of

prerogative power would, because of their

subject-matter, be less justiciable, with

Lord Roskill compiling the broadest list of

such forbidden territory….”

The observations of Lord Roskill, referred to

above, are from Council of Civil Service

Unions v. Minister for the Civil Service 1985

AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR

1174 (HL)] (GCHQ case) as under: (All ER p.

956d-e)

“But I do not think that that right of

challenge can be unqualified. It must, I

think, depend on the subject-matter of

the prerogative power which is exercised.

Many examples were given during the

argument of prerogative powers which as

at present advised I do not think could

properly be made the subject of judicial

review. Prerogative powers such as those

relating to the making of treaties, the

defence of the realm, the prerogative of

mercy, the grant of honours, the

dissolution of Parliament and the

appointment of ministers as well as

others are not, I think, susceptible to

judicial review because their nature and

subject-matter is such as not to be

amenable to the judicial process.”

31

18. Finally, this Court emphasised judicial

restraint by citing with approval a passage

in de Smith's Judicial Review of

Administrative Action (vide SCC p. 316, para

23) as under:

“Judicial self-restraint was still more

marked in cases where attempts were

made to impugn the exercise of

discretionary powers by alleging abuse of

the discretion itself rather than alleging

non-existence of the state of affairs on

which the validity of its exercise was

predicated. Quite properly, the courts

were slow to read implied limitations into

grants of wide discretionary powers which

might have to be exercised on the basis

of broad considerations of national

policy.”

Based on this reasoning, it was

acknowledged that the transfer of a Judge of

the High Court based on the

recommendation of the Chief Justice of India

would be immune from judicial review as

there is “an inbuilt check against

arbitrariness and bias indicating absence of

need for judicial review on those grounds.

This is how the area of justiciability is

reduced…. [Ibid., para 24] ”

19. We, respectfully, reiterate these

observations, and expect them to be kept in

mind by all courts in this country invested

with the power of judicial review.”

20.Further in the written submissions submitted on

behalf of the respondents, reliance is placed on the

32

circular dated 18.07.2005 to say that the currency of the

panel published in the month of March, 2014 is for a

period of two years. Such period can be extended by the

General Manager by one year in case of administrative

exigencies.

21.Somewhat similar question was considered in a

recent Judgment dated 22

nd

November, 2018 of this Court

in Civil Appeal No. 11149 of 2018 entitled Uttar Pradesh

Public Service Commission v. Surender Kumar &

Ors., whereby the Government Order contemplated that

the wait-list can be operated only for a period of one year,

deciding the said aspect, the Court held as under:

“12. Having heard the learned counsels on

both sides, we have perused the order dated

18.05.2018 passed by the High Court and other

material placed on record. For the purpose of

operating wait-list, Government of Uttar Pradesh

has issued instructions from time to time. It is

clear from the various Government Orders that

wait-list period is valid only for a period of one

year. Though requisition is made for making

selection for 178 number of posts, but appellant

Commission, after delcaring results of the

examination, has made initial recommendation

for substantive number of posts, i.e., 156 posts

vide letter dated 12.08.2010. It appears that the

said list is prepared by including candidates who

have submitted all the requisite documents

within the period prescribed. Further

recommendations were also made, but there is

no reason for not computing the period of one

year from 12.08.2010. When recommendations

33

were made for substantive number of posts on

12.08.2010, we are of the view that period of

one year for operating wait-list is to be

computed from 12.08.2010 but not from the last

recommendation made for one post, vide letter

dated 28.08.2012. The reason for restricting 156

names in the initial recommendation vide letter

dated 12.08.2010, is explained in paragraph 11

of the counter affidavit filed before the High

Court”.

22.Since the validity of the select panel has come to an

end on the afflux of time, therefore, there cannot be any

order to appoint the persons from such select list prepared

wayback in the year 2014 in pursuance to the

advertisement issued on 15.12.2010. Such panel cannot

be a perennial source of appointment.

23.Thus, in exercise of power of judicial review, I do not

find any reason to interfere in the decision-making process

of the Railways, so as not to appoint the appellants

against Group D posts advertised on 15.12.2010.

24.Consequently, I do not find any illegality in the order

passed by the Tribunal and the High Court. The appeals

are accordingly dismissed. No Costs.

.............................J.

(HEMANT GUPTA)

New Delhi,

November 27, 2018.

34