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PETITIONER:

MRS. ASHA KAUL AND ANR. ETC.

Vs.

RESPONDENT:

STATE OF JAMMU AND KASHMIR AND ORS.

DATE OF JUDGMENT15/04/1993

BENCH:

JEEVAN REDDY, B.P. (J)

BENCH:

JEEVAN REDDY, B.P. (J)

VENKATACHALA N. (J)

CITATION:

1993 SCR (3) 94 1993 SCC (2) 573

JT 1993 (2) 688 1993 SCALE (2)545

ACT:

Jammu & Kashmir Civil Service (Judicial) Recruitment Rule

1967: Rules 39. 41 read with Articles 317-320.

Constitution of India, 1950--Appointment of Munsifs--Select

list of twenty names by Public Service

Commission--Government's power to disapprove or

cancel--Scope of--Effect of Select list after one

year--Inclusion in select list--whether confers a right to

appointment.

Constitution of India, 1950 : Article 136--

Appeal--Appointment of Munsifs--Government's action of not

approving remaining names in select list-Interference by

Supreme Court under the circumstances whether called for.

HEADNOTE:

On 28.5.1984, the High Court intimated the government of ten

vacancies in the category of Munsifs and requested it to

initiate appropriate steps for selection of candidates.

Written test was held in the year 1985 and viva voce was

also held by the Public Service Commission.

On 10.12.1985 the High Court requested the Government to

select twenty candidates in the place of ten. On 27.12.1885

the Government requested the public Service Commission to

select twenty candidates. On 11.3.1986 the public service

commission sent three select lists, one containing twenty

candidates the other containing three Scheduled castes

candidates and a waiting list of ten candidates.

The Government received several complaints against the pro-

cess of selection. It was toying with the idea of scrapping

the entire list and asking for a fresh selection.

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On 23.12.1986, as the High Court said that there was urgent

need for at least thirteen Munsifs, the government approved

the name,,,- of thirteen persons out of the list recommended

by the Public Service commission and published the same.

They were appointed on 30.12. 1986.

Meanwhile a writ petition had been riled in the High Court

for a direction to the Government to approve and publish the

list recommended by the Public Service Commission.

On 30.12.1986, the State stated before the High court that

it has already approved thirteen names and approval of the

remaining seven persons was under its active consideration.

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The High Court dismissed the writ petition as settled. The

Government did not approve any other names in the list in

view of the complaints against the selection process by the

Public Service Commission.

The candidates in the select list below serial No. 13 were

pressing the Government to approve and publish the list and

the High Court was also pressing the Government to approve

the list in view of the vacancies.

Another writ petition was riled to direct the Government to

approve the remaining seven names from the select list.

The High Court (Single judge) allowed the writ petition and

directed the Government to approve and publish the list of

the remaining candidates submitted by the Public Service

Commission to it for appointment as Munsifs, immediately in

accordance with the Jammu and Kashmir Civil Services

(judicial) Recruitment Rules, 1967 and to consider the

appointment of the candidates (including the writ

petitioner-.) as Munsifs in the vacancies existing or likely

to arise, in accordance with the recommendations to he made

by the High Court.

On appeal, the division Bench of the High Court reversed the

decision of the Single Judge.

The present appeals by special leave were flied against the

96

decision of the Division Bench,. contending that once the

Public Service Commission prepared and recommended a select

list, the Government had no power to sit in judgment over

it; that the Government was bound to approve the list as

recommended; that the function of the Government under Rule

39 of the 1967 Rules was merely ministerial and formal; that

the Government's action was arbitrary and capricious and

vitiated by any admissible and extraneous consideration.

The State Government submitted that the function of the Gov-

ernment under Rule 39 was not merelY formal or ministerial;

that the Government, being the appointing authority, was

entitled to scrutinies the list open to the Government

either to approve or disapprove the list, either whollY or

in part-, that a number of complaints were received bY the

Government against the selection and many of them were found

to he not without substance; that in view of the pressing

need expressed by the High Court, the first thirteen

candidates in the list were approved in the interest of

judicial administration; that refusal to approve the

remaining seven names inasmuch as no vacancies were

available at that time was a valid and bonafide exercise of

power and discretion ton the part of the Government; that

the appellants had no legal right to be appointed just

because their names were included in the select list

prepared by the Public Service Commission.

Dismissing the appeals. this Court.

HELD: 1.1. It is true that the Government is the

appointing authority for the munsifs but it is misleading to

assert that in the matter of selection and appointment the

Government has an absolute power. Such an argument does

violence to the constitutional scheme. (102-F)

1.2. Rule 39 does not confer an absolute power upon the

Government to disapprove or cancel the select list sent by

the Public Service Commission Where, however, the Government

is satisfied, after due enquiry that the selection has been

vitiated either (on account of violation of a fundamental

procedural requirement or is vitiated by consideration or

corruption. favourtism or nepotism. it can refuse to

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approve the select list. In such a case, the Government is

bound to record the reasons for its action, and produce the

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same before a Court, if and when summoned to do so, apart

from placing the same before the Legislature as required by

clause (2) of Article 323. (103-F-H)

1.3. Art. 323 (2) is meant as a check upon the power of the

Government. The provision militates against the theory of

absolute power in the Government to disapprove or reject the

recommendations of the commission. For the same reason, it

must he held that the Government cannot pick and choose

candidates out of the list. It is equally not open to the

Government to approve a part of the list and disapprove the

balance. (104-B)

1.4. Where is respect of any particular candidates an),

material is discovered disclosing his involvement in any

criminal activity the Government can always refuse to

appoint such person but this would not he a case touching

the select list prepared and recommended by the commission.

(104-C)

1.5. In this case the Government itself had asked for a list

of twenty and the commission had sent a list of twenty. It

could not have been approved in part and rejected in part.

The number of vacancies available on the date of approval

and publication of the list is not material. By merely

approving the list of twenty, there was no obligation upon

the Government to appoint them forthwith. Their appointment

depended upon the availability of vacancies. The list

remains valid for one year from the date of its approval and

publication, if within such one year, any of the candidates

therein is not appointed, the list lapses and a fresh list

has to be prepared. (104-E-F)

1.6. If the Government wanted to disapprove or reject the

list, it ought to have done so within a reasonable time of

the receipt of the select list and for reasons to be

recorded. Not having done that and having approved the list

partly (thirteen out of twenty names), they cannot put

forward any ground for not approving the remaining list.

Indeed, when it approved the list to the extent of thirteen,

it ought to have approved the entire list of twenty or to

have disapproved the

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entire list of twenty. The objection, the Government have

pertains to the very process of selection i.e., to the

entire list and not individually to any of the remaining

seven candidates. (104-G)

1.7. Mere inclusion in the select list does not confer upon

the candidates included therein an indefeasible right to

appointment. (104-H)

State of Haryana v. Subhash Chandara Marwaha, A.I.R. 1973

SC. 2216, M. S. Jain v. State of Haryana , A.I.R. 1977 S.C.

and State of Kerala v. A. Lakshmikutty: A.I.R. 1987 S.C.

331, referred to. (111 -E)

1.8. The other aspect is the obligation of the Government to

act fairly. The whole exercise cannot be reduced to a more

farce. Having sent a requisition/request to the commission

to select a particular number of candidates for a particular

category,-in pursuance of which the commission issues a

notification, holds a written test, conducts interviews,

prepares a select list and then communicates to the

Government-the Government cannot quietly and without good

and valid reasons nullify the whole exercise and tell the

candidates when they complain that they have no legal right

to appointment. (105-B-C)

Shankarsan Dash v. Union of India. 1991 (3) SCC 47, referred

to.

2. The Government's action In not approving the rest of

the seven names in the select list is unsustainable but

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there are certain circumstances which induce the Court not

to interfere in this matter. They are: (1) During the

period of one year from the date of approval of thirteen

names (23.12.1986/30.121986) no vacancy had arisen, which

means that even if the list of twenty had been approved and

published on December 23 or December 30, 1986 none of the

seven persons would have been appointed. At the end of one

year, the list lapses and becomes inoperative. (II) When the

Government failed to act within a reasonable period from the

date of the order (December 30, 1986) of the High Court in

writ petition 1316/84 (which was disposed of recording the

statement of the Advocate General) the petitioners ought to

have moved in the matter. They did not do so. They waited

for more than twenty months and approached the High Court

only on

99

September 14, 1988. This delay disentitles the petitioners

from any relief in the facts and circumstances of the case.

(106-C-G)

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 173031/1993.

From the Judgment and Order dated 30.6.1992 and 2.9.1992 of

the Jammu and Kashmir High Court in L.P.A. No 161/90. and

C.W. P. No. 1352/88.

D.D. Thakur, M.H. Baig. Rajendra Mal Tatia, Indra Makwana

and K. K. Gupta (for Suresh A. Shroff & Co.) for the

Appellants.

V.R. Reddy, Addl. Solicitor General and Ashok Mathur for

the Respondents.

The Judgment of the Court was delivered by

B.P. JEEVAN REDDY, J. Heard counsel for the parties. Leave

granted in S.L.Ps. 12608/92 and 16418/92.

The appeals are directed against the judgment of the

Division Bench of the Jammu and Kashmir High Court allowing

a special appeal preferred by the State of Jammu and Kashmir

against the judgement of the learned Single Judge. The

learned Single Judge had allowed the writ petition filed by

the appellants herein. The matter pertains to approval and

publication of the select list of District Munsifs prepared

by the Jammu and Kashmir Public Service Commission.

On May, 28. 1984 the High court intimated the Government of

ten vacancies in the category of munsifs and requested the

Government to initiate appropriate steps for selection of

candidates. The government wrote to the public service

commission and the latter issued the notification and put

the process in motion. Written test was held in the year

1985. viva-voce was also held. At that stage, the High

Court requested the government (with a copy forwarded to the

public service commission) to select twenty candidates in

the place of ten. This was done on December 10, 1985. The

government, in turn, requested the public service commission

on December 27, 1985 to select twenty

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candidates. On March 11, 1986 the Public Service Commission

sent three select lists,. one containing twenty candidates,

the other containing three scheduled castes candidates and a

waiting list of ten candidates.

From the record placed before us by the learned counsel for

the State of Jammu and Kashmir, it appears that the

government received several complaints against the selection

process. The government appears to have been satisfied prima

facie with some of those complaints and was toying with the

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idea of scrapping the entire list and asking for a fresh

selection. The select list sent by the commission was kept

pending without being approved as required by Rule 39 of the

Jammu and Kashmir Civil Service,, (.Judicial) Recruitment

Rules, 1967. Meanwhile, the High Court had been pressing

for approval of the names in view of a number of vacancies

and the consequent accumulation of work. Number of courts

were without presiding officers. In particular, the High

Court said, there was urgent need for at least thirteen

Munsifs. In the circumstances, the government approved, on

December 23, 1986. tile names of thirteen persons out of

the list recommended by the public service commission and

Published the same. They were appointed on December 30,

1986. Meanwhile, a writ petition had been tiled in the High

Court for a direction to the Government to approve and

publish the list recommended by the public Service

commission. On December 30, 1986. the Advocate General for

the State stated before the court that the Government has

already approved thirteen entries and that the question of

approval of the remaining, persons in the list was under the

active consideration of the Government. Recording the said

statement, the writ petition was dismissed as settled. The

Government however, did not approve any of the other names

in the lists. evidently in view of the very same reasons for

which they were disinclined initially to approve the said

lists. Meanwhile, the candidates in the select list below

serial No. 13 were pressing the Government to approve and

publish the list. The High Court was also addressing the

government from time to time to approve the list in view of

certain vacancies arising since the appointment of the

thirteen Munsifs aforementioned. Since no further names

were being approved by the Government, the writ petition,

from which these appeals arise, was filed on September 14,

1988. The writ petition was allowed on July 11,1990 by a

learned Single Judge and a direction was issued to the State

Government to approve and publish the list of

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the remaining candidates submitted by the public service

commission to it for appointment as munsifs immediately in

accordance with the Rules of 1967 and to consider the

appointment of such candidates (including the writ

petitioners) as munsifs in the vacancies existing or likely

to exist in accordance with the recommendations to be made

by the High Court. On appeal, the Division Bench disagreed

with the learned Single Judge. The Bench held that approval

and publication of the select list by the Government under

Rule 39 is not a mere ministerial act but a meaningful one.

It is open to the government to examine the select list

carefully and to reach its own conclusion regarding the

suitability and merits of the candidates and publish the

names of only those candidates who are found suitable.

While approving the list, the Division Bench held, the State

Government cannot alter or temper with the order of merit

determined by the commission but it is certainly open to the

government to stop at a particular point where it feels that

a particular candidate is not meritorious and not to approve

the remaining list. The government is not bound to fill up

the existing vacancies within a particular time-frame. The

mere inclusion in the select list also does not confer upon

the candidates any indefeasible right to appointment. The

recommendations of the commission are not binding upon the

State Government-held the Division Bench. In the facts and

circumstances of the case, it must be held that the

remaining seven names in the select list have been

disapproved by the government. The writ petition also

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suffers from leaches. The persons who had meanwhile become

eligible and qualified to apply for the said post should

also be given a chance. A list prepared as far back as

1985-86 cannot be directed to be approved in the year 1992.

In these appeals, it is submitted by the learned counsel for

the appellants that once the public service commission

prepares and recommends a select list, the government has no

power to sit in judgment over it. It is bound to approve

the list as recommended. The function of the government

under Rule 39 of the 1967 Rules is merely ministerial and

formal. Even otherwise, the government has not disclosed

any reasons for not approving the seven names while

approving the first thirteen. The government's action is

arbitrary and capricious. It is indeed vitiated by

inadmissible and extraneous considerations. The government

cannot be allowed an absolute power in the matter. On the

other hand, it is contended by Sri Dipankar Gupta, learned

Solicitor-General appearing for the State of Jammu and

102

Kashmir that the function of the government under Rule 39 is

not merely formal or ministerial. The government being the

appointing authority, is entitled to scrutinise the list

prepared by the public service commission. It is open to

the government either to approve or disapprove the list

either wholly or in part. As a matter of fact, a large

number of complaints were received by the government against

the said selection and many of them were also found to be

not without substance. However, in view of the pressing

need expressed by the High Court, the first thirteen

candidates in the list were approved in the interest of

judicial administration. The remaining seven names were not

approved inasmuch as no vacancies were available at that

time. In all the circumstances of the case, the Hon'ble

Chief Minister took a decision on March 28, 1988 not to

approve any further names and to go in for fresh selection.

Inasmuch as the vacancies at the end of the year 1986 were

not more than thirteen, the refusal to approve the remaining

seven is a valid and bonafide exercise of power and

discretion on the part of the government. The appellants

have no legal right to be appointed just because their names

have been included in the select list prepared by the public

service commission. The first requisition by the High court

was sent in May, 1984. The written test was held in 1985.

The select list was recommended in March, 1986. After a

lapse of more than seven years, the said list cannot now be

directed to be given effect to, the learned Solicitor-

general submitted. Such a direction would deprive a large

number of persons, who have become qualified and eligible to

apply and complete for the said post meanwhile of the

opportunity of applying for the said post. Many of them may

even become age-barred meanwhile, he submitted.

It is true that the government is the appointing authority

for the munsifs but it is misleading to assert that in the

matter of selection and appointment the government has an

absolute power. Such an argument does violence to the

constitutional scheme. The Constitution has created a

public service commission and assigned it the function of

Conducting examinations for appointments to the services of

the Union or to the services of the State, as the case may

be. According to Article 320 clause (1) this is the primary

function of the commission. The Government is directed to

consult the public service commission on all matters

relating to methods of recruitment to civil services and to

civil posts and on the principles to be followed in making.

appointment to civil services and posts and on the

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suitability of candidates for

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such appointment, among other matters. An examination of

Articles 317 to 320 makes it evident that the constitution

Contemplates the commission to he an independent and

effective body outside the governmental control. This is an

instance of application of the basic tenet of democratic

form of government viz., diffusion of governing power, The

idea is not to allow the concentration of governing power in

the hands of one person, authority or organ. It is in the

light of this constitutional scheme that one has to construe

Rules 39 and 41 of the 1967 Rules. They read as follows:

39.Final List: The list of selected

candidates after it is approved shall be

published by the Government Gazette and a copy

thereof shall be sent to the court along with

the Waiting list, if any, furnished by the

commission for record in their office."

41. Security to the list:

The list and the Waiting list of the selected

candidates shall remain in operation for a

period of one year from the date of its

publication in the, Govt. Gazette or till it

is exhausted by appointment of the candidates

whichever is earlier, provided that nothing in

this Rule shall apply to the list and the

waiting list prepared as a result of the

examination held in 1981 which will in

operation till the list or the waiting list is

exhausted."

Construed in the above light, Rule 39, in our opinion, does

not confer an absolute power upon the government to

disapprove or cancel the select list sent by the public

service commission. Where, however, the government is

satisfied, after due enquiry that the selection has been

vitiated either on account of violation of a fundamental

procedural requirement or is vitiated by consideration of

corruption, favourtism or nepotism, it can refuse to approve

the select list. In such a case, the government is bound to

record the reasons for its action, and produce the same

before a Court, if and when summoned to do so, apart from

placing the same before the Legislature as required by

clause (2) of Article 323. Indeed, clause (2) of Article

323 obliges the Governor of a State to ray a copy of the

annual report received from the

104

commission before the Legislature "together with a

memorandum explaining, as respect the cases, if any, where

the advice of the commission was not accepted (and) the

reasons for such non-acceptance." Evidently, this is meant

as a check upon the power of the government. This provision

too militates against the theory of absolute power in the

government to disapprove or reject the recommendations of

the commission. For the same reason, it must be held that

the government cannot pick and choose candidates out of the

list. Of course, where in respect of any particular

candidate any material is discovered disclosing his

involvement in any criminal activity, the government can.

always refuse to appoint such person but this would not be a

case touching the select list prepared and recommended by

the commission. It is equally not open to the government to

approve a part of the list and disapprove the balance. In

this case, it may be remembered that the government itself

had asked for a list of twenty and the commission had sent a

list of twenty. (we are not concerned with the waiting list

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sent by the commission, at this stage). It could not have

been approved in part and rejected in part. The number of

vacancies available on the date of approval and publication

of the list is not material. By merely approving the list

of twenty, there was no obligation upon the government to

appoint them forthwith. Their appointment depended upon the

availability of vacancies. A reading of Rule 41 makes this

aspect clear. The list remains valid for one year from the

date of its approval and publication. If within such one

year, any of the candidates therein is not appointed, the

list lapses and a fresh list has to be prepared. In this

case, no doubt, a number of complaints appears to have been

received by the government about the selection process. We

have seen the note file placed before us. It refers to

certain facts and complaints. But if the government wanted

to disapprove or reject the list, it ought to have done so

within a reasonable time of the receipt of the select list

and for reasons to be recorded. Not having done that and

having approved the list partly (thirteen out of twenty

names) the cannot put forward any ground for not approving

the remaining list. I indeed, when it approved the list to

the extent of thirteen, it ought to have approved the

entire list of twenty or have disapproved the entire list of

twenty. The objection, the government have pertains to the

very process of selection i.e., to the entire list, and not

individually to any of the remaining seven candidates.

It is true that mere inclusion in the select list does not

confer upon

105

the candidates included therein an indefeasible right to

appointment State of Haryana v. Subhash Chandra Marwaha

A.I.R. 1 973 S.C.2216; M.S, Jain v.State of Haryana A.I.R.

1977 S.C. 276 and State of Kerala v. A. Lakshmikutty A.I.R.

1987 S.C 331 but that is only one aspect of the matter. The

other aspect is the obligation of the government to act

fairly. The whole exercise cannot be reduced to a farce.

Having sent a requisition/request to the commission to

select a particular number of candidates for a particular

category, in pursuance of which the commission issues a

notification, holds a written test, conducts a notification,

holds a written test, conducts interviews, prepares a select

list and then communicates to the government-the government

cannot quietly and without good and valid reasons nullify

the whole exercise and tell the candidates when they

complain that they have no legal right to appointment. We

do not think that any government can adopt such a stand with

any justification today. This aspect has been dealt with by

a Constitution Bench of this Court in Shankarsan Dash v.

Union of India 1991 1 3 S.C.C.47 where the earlier decisions

of this court are also noted. The following observations of

the court are apposite:

"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

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in an arbitrary manner. The decision not to

fill up the vacancies has to he 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 Court, and we do

not find any discordant note in the decisions

in State of Hary-

106

ana v. Subhash Chander Marwahs, Neelima.

Shangla v. State of Haryana or- Jatendra Kumar

v. State of Punjab."

We may reiterate that the principle of Article 323, referred

to hereinabove, is equally relevant on the nature of the

power of the government in such a matter.

Looked at from the above stand-point, it appears that the

government's action in not approving the rest of the seven

names in the Select list is unsustainable but there are

certain circumstances which induce us not to interfere in

this matter. They are:

(i) During the period of one year from the date of approval

of' thirteen names (23.12.1986/30.12.1986) no vacancy bid

arisen. which means that even if the list of twenty had been

approved and published on December 23 or December 30. 1986

none of the seven persons would have been appointed. At the

end of one year. the list lapis and becomes inoperative.

The first letter of the High Court stating that one or two

more vacancies have arisen and requesting the Government to

approve the remaining names, was sent only on August 13,1988

i.e., long after the expiry of the one year period. Any

direction at this stage to approve the list would be a

futile exercise. The list cannot be operated with respect

to the vacancies existing as on today; and

(ii) When the government failed to act within a reasonable

period from the date of the order December 30, 1986 ) of the

High Court in writ petition 1316/84 (which was disposed of

recording the statement of the Advocate General ) the

petitioners ought to have moved in the matter. They did not

do so. They waited for more then twenty months and

approached the High Court only on September 14. 1988. This

delay in our opinion, disentitles the petitioners from any

relief in the facts and circumstances of the case.

For the above reasons, the appeals fail and are dismissed.

No costs.

WRIT PETITION (C) NO. 81 OF 1993:

107

The petitioner in this writ petition was included in the

waiting list prepared by the public service commission.

Since the appeals preferred by the candidates at serial No.

14 onwards in the main list have themselves failed. there is

no question of giving any relief to this petitioner.

The writ petition accordingly fails and is dismissed. No

costs.

V. P. R. Appeals dismissed.

108