No Acts & Articles mentioned in this case
2026 INSC 64 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 273 OF 2026
[ARISING OUT OF SLP (CIVIL) NO. 2036 6/2024]
RAJASTHAN PUBLIC SERVICE COMMISSION , AJMER … APPELLANT
VS.
YATI JAIN & ORS. … RESPONDENTS
WITH
CIVIL APPEAL NO. 274 OF 2026
[ARISING OUT OF SLP (CIVIL) NO. 20367/2024 ]
RAJASTHAN PUBLIC SERVICE COMMISSION, AJMER … APPELLANT
VS.
AAKRITI SAXENA & ORS. … RESPONDENTS
WITH
CIVIL APPEAL NO. 275 OF 2026
[ARISING OUT OF SLP (CIVIL) NO. 22025/2024 ]
RAJASTHAN PUBLIC SERVICE COMMISSION, AJMER … APPELLANT
VS.
VIVEK KUMAR MEENA & ANR . … RESPONDENTS
2
J U D G M E N T
DIPANKAR DATTA, J.
INDEX
The Appeals ..................................................................................... 2
Brief Facts of Civil Appeal arising out of SLP (C) No. 20366/2024 ........... 3
Brief Facts of Civil Appeal arising out of SLP (C) No. 20367/2024 ........... 5
Brief Facts of Civil Appeal arising out of SLP (C) No. 22025/2024 ........... 6
What weighed with the single judges to allow the writ petitions? ............ 8
Impugned Judgment in all three Civil Appeals: ..................................... 9
Submissions on behalf of the appellant .............................................. 10
Submissions on behalf of the writ petitioners ..................................... 11
Issues: .......................................................................................... 16
Analysis: ....................................................................................... 17
Issue A - Maintainability of the Special (Writ) Appeals: ..................... 17
Issues B, C and D - on Merits of the rival claims: ............................. 30
A Waiting List ........................................................................... 30
Decision on the claims of the writ petitioners ................................... 36
Why the ratio of the relied upon decisions do not apply .................... 48
Conclusion ..................................................................................... 53
Epilogue ........................................................................................ 54
1. Leave granted.
THE APPEALS
2. The three appeals under consideration, presented by the common
appellant
1
, arise out of separate but similar judgments rendered by a
Division Bench of the High Court for Judicature for Rajasthan at Jaipur
2
;
1
Rajasthan Public Service Commission
2
High Court
3
hence we propose to decide the same by this common judgment and
order.
3. The lead appeal, arising out of SLP (C) No. 20366/2024, questions the
judgment and order dated 2
nd
May, 2024 whereby the appellant’s writ
appeal
3
was dismissed and the order of a Single Judge dated 23
rd
August, 2023 allowing the writ petition
4
of the respondent (Yati Jain)
was affirmed.
4. The other two appeals, arising out of SLP (C) No. 20367/2024 and SLP
(C) No. 22025/2024, also take exception to the judgments and orders
dated 2
nd
May, 2024 of the Division Bench of the High Court which
dismissed the appellant’s writ appeals
5
carried from the judgments and
orders dated 2
nd
May, 2023 and dated 20
th
October, 2023 allowing the
writ petitions
6
of the respondent (Aakriti Saxena) and the respondent
(Vivek Kumar Meena), respectively, and thereby upheld the same.
BRIEF FACTS OF CIVIL APPEAL ARISING OUT OF SLP (C) NO. 20366/2024
5. The dispute stems from an advertisement dated 19
th
September, 2019
issued by the appellant for recruitment of Junior Legal Officer (JLO) on
one hundred fifty-six (156) posts.
6. The result of selection was declared on 15
th
April, 2021. A provisional
reserve list of even date was also prepared by the appellant.
7. Between 7
th
June 2021 and 10
th
August 2021, the appellant
recommended one hundred fifty-two (152) successful candidates to the
3
D.B. Special Appeal Writ No. 34/2024
4
S.B. Civil Writ Petition No. 8926/2022
5
D.B. Special Appeal Writ No. 889/2023 and D.B. Special Appeal Writ No. 52/2024
6
S.B. Civil Writ Petition No. 5652/2022 and S.B. Civil Writ Petition No. 14675/2016
4
Department of Law and Legal Affairs of the State of Rajasthan
7
for
issuance of offers of appointment.
8. On 27
th
January, 2022, the Appointing Authority informed the appellant
that six (6) out of the one hundred fifty-two (152) candidates, who were
recommended, had not joined. A request was made to recommend more
names from the reserve list to fill up the vacancies.
9. Between 19
th
April 2022 and 22
nd
April, 2022, the appellant
recommended the names of six (6) candidates from the reserve list,
which included 4 candidates with ranks from R-1 to R-4, 1 candidate
from General Category-EWS (R-23) and 1 candidate from General
Category – PWD (Blind) (R-69). Yati Jain, who figured as R-5, did not
figure in the list of recommended candidates.
10. Crestfallen, Yati Jain invoked the writ jurisdiction of the High Court in
June, 2022 seeking a direction to the authorities to cancel the
appointment of one Shri Vikas Kumar (appointed from the original list),
who had not joined despite receiving an offer of appointment, and to
instead requisition her name from the reserve list.
11. Meanwhile, on 14
th
July, 2022, the Appointing Authority cancelled the
appointment offered to Shri Vikas Kumar. However, the appellant did
not recommend the name of Yati Jain to fill up the post remaining vacant
upon cancellation of appointment of the said Vikas Kumar.
12. While the matter stood thus, a total of one hundred forty (140)
vacancies on the post of Junior Legal Officer was advertised on 5
th
July,
2023 for recruitment.
7
Appointing Authority
5
13. The Single Judge of the High Court, while hearing the writ petition of
Yati Jain passed an interim order directing that the post which fell vacant
due to cancellation of the offer of appointment of Shri Vikas Kumar shall
not be filled up.
14. Vide judgment and order dated 23
rd
August, 2023, the Single Judge
allowed the writ petition of Yati Jain by directing the respondents “to
pick up name of petitioner from the reserve list to consider her
candidature for appointment on the post of JLO fallen vacant due to non
joining of Vikas Kumar pursuant to recruitment initiated vide
advertisement dated 19-09-2019”.
15. Aggrieved by the aforesaid judgment and order, the appellant preferred
a writ appeal but remained unsuccessful. The fate of the writ appeal has
been noticed hereinabove.
BRIEF FACTS OF CIVIL APPEAL ARISING OUT OF SLP (C) NO. 20367/2024
16. In this appeal, the genesis of the dispute is an advertisement dated 6
th
July, 2020 issued by the appellant seeking applications for appointment
on eleven (11) vacancies in the post of Assistant Statistical Officer
(ASO).
17. On 3
rd
August, 2021, the appellant declared the final result of selection.
18. Recommendation of ten (10) successful candidates was made by the
appellant on 13
th
August, 2021 to the department concerned, i.e. the
Agriculture Department, for appointment. It also intimated that seven
(7) candidates were placed in the reserve list.
19. One Mr. Sunil Machhera, a candidate who figured in the original merit
list and was offered appointment, submitted an application dated 28
th
6
February, 2022 to the effect that he was selected for the Indian
Statistical Service, 2021 and that he would not join the post of ASO.
Having derived knowledge of such fact, Aakriti Saxena submitted an
application to select her from the reserve list where she figured as R-1.
20. Notably, the concerned department had not forwarded any requisition
to the appellant for recommending a candidate from the reserve list to
fill up the vacancy caused because of non-joining by the said Sunil
Machhera.
21. Aggrieved by the inaction to consider her application, Aakriti Saxena
approached the High Court with a writ petition on 5
th
April, 2022.
22. Vide the judgment and order dated 2
nd
May, 2023, the same Single
Judge (who allowed the writ petition of Yati Jain) held in favour of Aakriti
Saxena and allowed her writ petition by directing the respondents “to
pick up the name of petitioner from the reserve list and to consider her
candidature for appointment on the post of ASO against the vacant post,
available in the Department due to not joining of Mr. Sunil Machhera the
candidate from the main list and shall offer appointment to the petitioner
…”.
23. As noted above, the aggrieved appellant’s writ appeal met the same fate
as its earlier appeal.
BRIEF FACTS OF CIVIL APPEAL ARISING OUT OF SLP (C) NO. 22025/2024
24. This appeal has its roots in an advertisement dated 18
th
September,
2013 issued by the appellant seeking applications for appointment on
one hundred fifty (150) vacant posts of Junior Legal Officer – 2013-14.
7
25. Declaration of result was made by the appellant on 23
rd
November,
2015.
26. A provisional reserve list dated 3
rd
December, 2015 was also prepared
by the appellant.
27. Between 11
th
December, 2015 and 30
th
March, 2016, the appellant
recommended one hundred forty-seven (147) candidates from the
select list to the Appointing Authority for issuance of offers of
appointment.
28. On 9
th
June, 2016, the Appointing Authority requested for
recommendations in respect of twenty-seven (27) candidates from the
reserve list for appointment.
29. On 8
th
August, 2016, twenty-seven (27) candidates from the reserve list
were recommended by the appellant.
30. Appointment of one recommended candidate, Mr. Raj Kumar Meena,
who did not join was cancelled on 9
th
December, 2016. No requisition
was sent by the Appointing Authority to the appellant to recommend any
candidate to fill up the vacancy remaining unfilled because of
cancellation of appointment of the said Raj Kumar Meena.
31. Vivek Kumar Meena, in the meanwhile, had applied under Article 226 of
the Constitution on 17
th
October, 2016 before the High Court.
32. Vide the judgment and order dated 20
th
October, 2023, the Single Judge
allowed the writ petition of Vivek Kumar Meena “with direction to the
respondents to consider the case of the petitioner for appointment on
the post of Junior Legal Officer, if he is otherwise found eligible and
suitable”.
8
33. Significantly, the Single Judge did not give a positive direction for
appointment as in the cases of Yati Jain and Aakriti Saxena; instead,
required the respondents to consider the case of Vivek Kumar Meena
subject to suitability.
34. The writ appeal of the appellant, too, did not find favour of the Division
Bench.
WHAT WEIGHED WITH THE SINGLE JUDGES TO ALLOW THE WRIT PETITIONS ?
35. We have noted the individual operative directions given by the Single
Judges while allowing the three writ petitions. While the writ petitions of
Yati Jain and Aakriti Saxena were decided by a common Judge, Vivek
Kumar Meena’s writ petition came to be decided by another Single
Judge.
36. In the process of allowing the writ petitions, the Judges presiding over
the respective benches appear to have placed reliance on the decisions
of this Court in Manoj Manu v. Union of India
8
, State of Jammu and
Kashmir v. Sat Pal
9
, State of Uttar Pradesh v. Ram Swarup Saroj
10
and Purshottam v. Chairman, M.S.E.B.
11
as well as other Decisions
of the High Court. However, though the decision of this Court in State
of Bihar v. Amrendra Kumar Mishra
12
, which relied on State of U.P.
v. Harish Chandra
13
, as well as the decision in State of Orissa v.
Rajkishore Nanda
14
were cited, the Single Judges preferred not to
8
(2013) 12 SCC 171
9
(2013) 11 SCC 737
10
(2000) 3 SCC 699
11
(1996) 6 SCC 49
12
(2006) 12 SCC 561
13
(1996) 9 SCC 309
14
(2010) 6 SCC 777
9
apply the law laid down therein for reasons which do not appear on a
reading of their decisions.
IMPUGNED JUDGMENT IN ALL THREE CIVIL APPEALS:
37. The impugned judgment s and orders of dismissal of all three writ
appeals apart from being rendered on the same date are verbatim
similar, except the case numbers and the recruitment cycles.
38. The Division Bench, inter alia, held as follows:
“ …, the learned Single Judge had clearly dealt with the dates of non-
joining of the selected candidates and has come to the conclusion
that the appellant (sic, writ petitioner) had applied to the Court within
a period of six months from the date of non-joining of the candidate
from the main select list. State has not preferred any appeal against
the order and there is no direction to the appellant in the impugned
order. Hence, we do not find any force in the present appeal filed by
the RPSC and the same is accordingly, dismissed.”
39. Considering that the Division Bench held the writ appeals to be without
any force since the State of Rajasthan did not appeal against the
decisions of the Single Judges, there is admittedly scant reasoning on
the aspect of merits. However, we have noted that the Division Bench
approved the directions of the Single Judges on the ground that Yati
Jain, Aakriti Saxena and Vivek Kumar Meena
15
had applied to the Court
within a period of six months from the date of non -joining of the
candidates recommended for appointment from the select list and, thus,
there was no reason to interfere. We have also noted that the Division
Bench placed reliance on two previous decisions of the High Court in
15
the writ petitioners, hereafter, when referred to collectively
10
State of Rajasthan v. Dr. Shri Kishan Joshi & Ors.
16
and RPSC v.
Dr. Harish Nagpal & Ors.
17
.
40. Though not expressly dismissed on the ground of lack of locus standi,
we do find a hint that the “Special Appeals” were not maintainable at
the instance of the appellant since the State of Rajasthan had chosen
not to appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT
41. Appearing on behalf of the appellant, Mr. Samant, learned counsel
contended that the Division Bench was wholly incorrect in returning a
finding that since the State of Rajasthan had not appealed against the
decisions of the Single Judges, the appellant could not have carried the
same in appeal. According to him, the appellant is a con stitutional
functionary having its independent duties and responsibilities. Without
a recommendation of the appellant, no candidate either from the
select/merit list or from the waiting/reserve list can be appointed. In
these cases, without even such recommendation being made by the
appellant, relief has been granted which is per se illegal. That apart, the
Singles Judge of the High Court grossly erred in making the directions
in their respective decisions which were impugned in the intra-court
appeals and the Division Bench equally erred in not correcting such
flawed decisions. Reference was made to several decisions of this Court
in support of the point that the appellant’s appeals were well-nigh
maintainable in law and that the law relating to the duties and
16
D.B. Civil Special Appeal (Writ) No. 81/2020
17
D.B. Special Appeal (Writ) No. 554 / 2017
11
responsibilities of a Public Service Commission, like the appellant, as
well as the law on waiting/reserve list and its operation were not borne
in mind.
SUBMISSIONS ON BEHALF OF THE WRIT PETITIONERS
42. Mr. K. Parameshwar, learned senior counsel for Yati Jain, submitted as
follows:
(i) the stand taken by the appellant strikes at the very object and purpose
of maintaining a waiting/reserve list. A reserve list is not an
independent or parallel source of recruitment but is intended to operate
as a contingency mechanism if vacancies arising from the same cycle
of recruitment remain unfilled owing to non -joining of candidates
offered appointment. Its relevance arises only upon the complete
utilization of the original select list. It is only after appointment orders
have been issued to the last candidate in the original list that the
reserve list can meaningfully commence operation. Any interpretation
to the contrary would render the concept of a reserve list illusory.
(ii) Rule 24 of the Rajasthan Rules, 1981 does not admit of a purely literal
or mechanical construction. Computing the six-month validity of the
reserve list from the date of forwarding or publication of the original
list would frustrate the very purpose for which the rule was enacted.
Such an interpretation would allow administrative delay on the part of
the State to render the reserve list otiose even before the original list
is exhausted, resulting in manifest inequity and prejudice to candidates
in the reserve list through no fault of theirs.
(iii) In light of the principle of purposive interpretation, Rule 24 must be
construed in a manner that advances the object sought to be achieved.
12
The mischief sought to be remedied is the non -filling of vacancies
arising due to non-joining of selected candidates within the same
recruitment cycle. Consequently, the six-month period for operation of
the reserve list can only commence from the date on which the last
appointment from the original list is made or from the date on which a
vacancy arises on account of non-joining. Any other construction would
lead to anomalous and unjust consequences.
(iv) On facts, the interpretation canvassed by the appellant leads to a
manifestly absurd result. The appointment order to the last candidate
in the original list was issued on 31
st
December, 2021, several months
after the Commission had forwarded its recommendations. Had the
appointment been issued only a few weeks later, the reserve list, as
computed by the appellant, would have expired on 09
th
February, 2022
even before the original list was fully exhausted. Such a construction
would render the reserve list inoperative prior to the emergence of a
non-joining vacancy. Upon cancellation of the said appointment, a
vacancy would have arisen with no valid reserve list to draw from. The
interpretation that furthers the legislative intent of timely filling of
vacancies must therefore prevail. Accordingly, the six-month validity of
the reserve list must commence from the date of appointment of the
last candidate in the original list, and upon his non -joining, the
respondent became eligible for appointment.
(v) The writ petition under Article 226 was clearly maintainable in view of
the arbitrary and discriminatory conduct of the appellant. While it is
settled law that a candidate does not acquire an indefeasible right to
appointment merely by being placed in a se lect or waiting list, it is
13
equally well settled that the recruiting authority and the State are
bound to act in a non-arbitrary manner and cannot treat similarly
situated candidates unequally.
(vi) Appellant’s conduct is ex facie arbitrary. On the one hand, the appellant
asserted that the reserve list had expired on a particular date; on the
other hand, it itself forwarded names from the same reserve list to the
State Government even thereafter. Such conduct amounts to blowing
hot and cold at the same time and offends the guarantee of equality
under Article 14. Appellant cannot selectively operate the reserve list
for some candidates while denying its benefit to others who stand on
the same footing as Yati Jain.
(vii) The role of the State Government in granting repeated extensions to
the selected candidate, followed by belated cancellation of the
appointment, has further compounded the arbitrariness. This
administrative indulgence directly prejudiced Yati Jain as the non -
joining vacancy, which ought to have been promptly recognised, was
allowed to persist until the appellant sought to treat the reserve list as
having lapsed.
(viii) Public employment constitutes a material resource of the community .
Access to such a scarce public resource is regulated through
competitive examinations and merit -based selection. To deny
appointment to a meritorious candidate in the reserve list against a
non-joining vacancy of the same recruitment cycle, on the basis of
arbitrary administrative action, results in substantive inequality. Telling
such a candidate to await a future recruitment cycle offers no real
14
redress, particularly when the vacancy has already arisen and remains
unfilled.
(ix) Sat Pal (supra) was relied on for the proposition that the relevant date
for determining the commencement and operation of a reserve list is
not the date of preparation of the original list but the date on which the
vacancy arises or the last appointment is made.
(x) Appellant lacks institutional locus standi to assail the impugned
judgment. The constitutional role of a Public Service Commission is
confined to conducting the selection process and recommending
candidates in accordance with the requisition made by the State. The
determination of vacancies, their filling up, and the interpretation
adopted by the appointing authority fall within the exclusive domain of
the State Government as employer. Where the State itself has accepted
the judicial directions and has chosen not to contest them, the
appellant cannot claim to be an aggrieved party.
43. On behalf of Aakriti Saxena and Vivek Kumar Meena, similar submissions
have been advanced by Mr. Ronak Karanpuria, learned counsel.
(i) Appellant’s contention that the reserve list had lapsed after six
months is belied by the conduct of the authorities themselves. Even
after the alleged expiry of the waiting list, appointments were made,
cancellations effected, and vacancies acknowledged by the State
Government. Affidavits filed by the State confirmed that several
posts continued to remain vacant owing to non -joining of
candidates.
(ii) The limitation attached to the operation of a waiting/reserve list
cannot be applied mechanically in a situation where vacancies arise
15
due to non-joining and the appointing authority itself continues to
treat the recruitment process as subsisting. Respondents – Aakriti
Saxena and Vivek Kumar Meena – cannot be made to suffer for
administrative delay or indecision. Had the appointments of the
candidates who refused to accept the offers were promptly
cancelled, the vacancies relatable to the respondents – Aakriti
Saxena and Vivek Kumar Meena – would have arisen well within the
prescribed period.
(iii) Respondents – Aakriti Saxena and Vivek Kumar Meena – had
submitted representations and invoked legal remedies within time
and that their claims cannot be defeated by the inaction of the
recruiting agency. The waiting/reserve list remained alive both de
facto and de jure, as evidenced by continued recruitment-related
actions undertaken by the State and the appellant.
(iv) The role of a Public Service Commission is recommendatory in
nature. Once the State Government, being the appointing authority,
repeatedly directed the appellant by communications dated 28
th
June, 2024, 25
th
July, 2024, and 02
nd
August, 2024 to process the
respondent’s appointment, the appellant could not sit in appeal over
such directions.
(v) On equitable considerations, learned counsel submitted that
Respondent – Vivek Kumar Meena – has been litigating continuously
since 2016 and has now crossed the upper age threshold, entirely
due to the pendency of proceedings and not on account of any fault
on his part.
16
(vi) Respondent – Aakriti Saxena – had approached the writ court with due
diligence and at the earliest available opportunity. The selected
candidate having declined to join on 28
th
February, 2022, the
respondent – Aakriti Saxena – being next in order of merit in the
General Category reserve list, submitted representations seeking
appointment on 29
th
March, 2022. The writ petition was thereafter filed
on 05
th
April, 2022, i.e., within a month of the vacancy having been
confirmed.
(vii) The orders of the Single Judges on the writ petitions of the respondents
– Aakriti Saxena and Vivek Kumar Meena – are well considered and
well written; hence, the same were upheld by the Division Bench; and,
there being no infirmity in the orders passed by the Division Bench, no
interference is called for.
ISSUES:
44. Having heard Mr. Samant, Mr. Parameshwar, and Mr. Karanpuria, we
are of the considered opinion that the following issues emerge for our
decision:
(i) Whether the appellant is a person aggrieved having locus standi to
maintain the writ appeals notwithstanding that the State of
Rajasthan had not challenged the directions given by the Single
Judges by preferring appeals?
(ii) What is a waiting list? When precisely does the right of a wait-listed
candidate to be considered for appointment accrue s? On facts of
these appeals, did the right (if, at all) accrue on and from the date
17
of refusal to accept the offer by the candidate(s) who were offered
appointment or from any prior date?
(iii) If no requisition is received by the appellant from the Appointing
Authority or the employer, as the case may be, to fill up a vacancy
(resulting from non-joining by a candidate offered appointment) by
appointing a candidate figuring in the reserve/waiting list, could the
High Court have issued a mandamus to “pick up” the name from the
waiting/reserve list for appointment or even to direct consideration
of the candidature of a candidate from the waiting/reserve list?
(iv) Whether the impugned judgment s and orders of the Division Bench
of the High Court, as well as those rendered by the Single Judges,
sustainable in law?
ANALYSIS:
ISSUE A - MAINTAINABILITY OF THE SPECIAL (WRIT) APPEALS:
45. An appeal is always a creature of statute. We need not burden our
judgment with precedents on this point of law.
46. Suffice it to note, the right of appeal is the right of reaching out to a
superior court, invoking its authority to have a relook at the facts vis-à-
vis the law applicable and to rectify the errors committed by a court
inferior in the hierarchy. It is a very valuable right. Therefore, when the
statute confers such a right of appeal, it is open to the person aggrieved
to seek correction of the errors committed by the inferior court.
47. While writ appeals are creatures of statutes as well, it occupies a
distinctive position within the judicial landscape within a high court. It is
18
an intra-court appeal where a division bench of two judges may sit in
appeal over the decision of a colleague single judge.
48. We may profitably refer to Shalini Shyam Shetty v. Rajendra
Shankar Patil
18
where this Court traced the history of writs in the
Indian context. It was held:
24. Before the coming of the Constitution on 26-1-1950, no court in
India except three High Courts of Calcutta, Bombay and Madras could
issue the writs, that too within their original jurisdiction. Prior to
Article 226 of the Constitution, under Section 45 of the Specific Relief
Act, the power to issue an order in the nature of mandamus was
there. This power of the Courts to issue writs was very truncated and
the position has been summarised in the Law of Writs by V.G.
Ramachandran, Vol. 1 (Eastern Book Compan y). At p. 12, the learned
author observed:
“… The power to issue writs was limited to three High Courts. The
other High Courts in India, however, were created by the Crown
under Section 16 of the High Courts Act, 1861 but they had no
such power. It is necessary to mention that under Section 45 of
the Specific Relief Act, 1877, even the High Courts of Madras,
Calcutta and Bombay could not issue the writs of prohibition and
certiorari or an order outside the local limits of their original civil
jurisdiction.”
25. The power to issue writs underwent a sea change with the coming
of the Constitution from 26-1-1950. Now writs can be issued by the
High Courts only under Article 226 of the Constitution and by the
Supreme Court only under Article 32 of the Constitution. …
49. While the exercise of writs is a power expressly conferred on the high
courts by the Constitution, writ appellate jurisdiction is not. Such
jurisdiction is conferred either by the Letters Patent or by the statutes
relating to the high courts concerned. The power exercised by the high
courts under Article 226 is plenary, in the sense that the power is wide
and expansive; but it is not unlimited, since such power has to be
exercised on certain well-established and well-recognised principles.
After all, it is a discretionary remedy. It is the responsibility of the high
18
(2010) 8 SCC 329
19
courts as custodians of the Constitution to maintain the social balance
by interfering where necessary for the sake of justice and refusing to
interfere where it is against the social interest and public good.
50. We may now understand the character as well as the nature of power
exercisable by an appellate bench of a high court, comprising of two or
more judges, when it derives authority either from the Letters Patent or
the relevant statute to sit in appeal carried from an order passed by a
judge of the same high court in exercise of writ jurisdiction, sitting singly,
both on facts as well as law. It is the internal working of the high court
which splits it into different ‘Benches’ and yet the court remains one. A
letters patent appeal, as permitted under the Letters Patent, is normally
an intra-court appeal whereunder the Letters Patent Bench, sitting as a
“Court of Correction”, corrects its own orders in exercise of the same
jurisdiction as was vested in the Single Bench. We draw guidance for this
settled legal proposition from the decision of this Court in Baddula
Lakshmaiah v. Sri Anjaneya Swami Temple
19
.
51. When and how such a n appellate power in the intra-court jurisdiction
may be exercised? In our considered opinion, exercise of intra-court
appellate jurisdiction could be called for if the judgment/order under
challenge is palpably erroneous or suffers from perversity; but, it may
not be exercised when two views are possible on a given set of facts and
one of two views has been taken which is a plausible view.
52. We may only note that in the context of whether a division bench in an
intra-court appeal could have remitted a writ petition to the single judge
19
(1996) 3 SCC 52
20
for moulding the relief, this Court expressed its reservations in Roma
Sonkar v. M.P. State Public Service Commission
20
. It was, however,
held in such connection as follows:
3. … It is the exercise of jurisdiction of the High Court under Article
226 of the Constitution of India. The learned Single Judge as well as
the Division Bench exercised the same jurisdiction. Only to avoid
inconvenience to the litigants, another tier of screening by the
Division Bench is provided in terms of the power of the High Court
but that does not mean that the Single Judge is subordinate to the
Division Bench. …
53. With specific reference to the State of Rajasthan, Section 18 of the
Rajasthan High Court Ordinance, 1949 provides for an appeal to the High
Court from judgments of Judges of the High Court itself. This, read in
conjunction with the Rules of the High Court of Judicature for Rajasthan,
1952, provides for a “Special Appeal” before a Division Bench.
54. However, neither the Statute nor the Rules guide us in determining who
may apply for such a “Special Appeal” or a writ appeal.
55. In our considered opinion, the Division Bench has erred in its reasoning.
It was of the opinion that since the State has not preferred an appeal
and there being no positive direction to the appellant which it was
required to comply, the Division Bench did “not find any force” in the
present appeals. This is in the teeth of various decisions of this Court
which we propose to discuss below.
56. First, who can appeal is a fundamental question that we must answer to
put this lis to rest.
57. A writ appeal is a continuation of the original writ petition. One may
make a profitable reference to the decision in Committee of
20
(2018) 17 SCC 106
21
Management, Arya Nagar Inter College v. Sree Kumar Tiwary
21
in
this regard.
58. Drawing inspiration from the aforesaid proposition, we can conclude that
anyone who may file a writ petition would have the locus standi to file a
writ appeal albeit with some caveats.
59. Any discussion on the topic of a “person aggrieved” would be incomplete
without reference to the landmark decision of this Court in Bar Council
of Maharashtra v. M.V. Dabholkar
22
. There, the meaning of “person
aggrieved” as appearing in the Advocates Act, 1961 was decided by
ruling as follows:
31. The Bar Council is “a person aggrieved” for these reasons. First,
the words “person aggrieved” in the Act are of wide import in the
context of the purpose and provisions of the statute. In disciplinary
proceedings before the Disciplinary Committee there is no lis and
there are no parties. Therefore, the word “person” will embrace the
Bar Council which represents the Bar of the State. Second, the Bar
Council is “a person aggrieved” because it represents the collective
conscience of the standards of professional conduct and etiquette.
The Bar Council acts as the protector of the purity and dignity of the
profession. Third, the function of the Bar Council in entertaining
complaints against advocates is when the Bar Council has reasonable
belief that there is a prima facie case of misconduct that a
Disciplinary Committee is entrusted with such inquiry. Once an
inquiry starts, the Bar Council has no control over its decision. The
Bar Council may entrust it to another Disciplinary Committee or the
Bar Council may make a report to the Bar Council of India. This
indicates that the Bar Council is all the time interested in the
proceedings for the vindication of discipline, dignity and decorum of
the profession. Fourth, a decision of a Disciplinary Committee can
only be corrected by appeals as provided under the Act. When the
Bar Council initiates proceedings by referring cases of misconduct to
Disciplinary Committee, the Bar Council in the performance of its
functions under the Act is interested in the “task of seeing that the
advocates maintain the proper standards and etiquette of the
profession. Fifth, the Bar Council is vitally” concerned with the
decision in the context of the functions of the Bar Council. The Bar
Council will have a grievance if the decision preju dices the
maintenance of standards of professional conduct and ethics.
21
(1997) 4 SCC 388
22
(1975) 2 SCC 702
22
60. We may at this stage also seek guidance from the eloquent words of
Hon’ble R.S. Sarkaria, J. (as His Lordship then was) while speaking for
this Court in Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir
Ahmed
23
. The instructive passage reads as follows:
13. This takes us to the further question: Who is an “aggrieved
person” and what are the qualifications requisite for such a status?
The expression “aggrieved person” denotes an elastic, and to an
extent, an elusive concept. It cannot be confined within the bounds
of a rigid, exact and comprehensive definition. At best, its features
can be described in a broad tentative manner. Its scope and meaning
depends on diverse, variable factors such as the content and intent
of the statute of which contravention is all eged, the specific
circumstances of the case, the nature and extent of the petitioner's
interest, and the nature and extent of the prejudice or injury suffered
by him. English courts have sometimes put a restricted and
sometimes a wide construction on the expression “aggrieved
person”. However, some general tests have been devised to
ascertain whether an applicant is eligible for this category so as to
have the necessary locus standi or “standing” to invoke certiorari
jurisdiction.
…
34. This Court has laid down in a number of decisions that in order
to have the locus standi to invoke the extraordinary jurisdiction under
Article 226, an applicant should ordinarily be one who has a personal
or individual right in the subject-matter of the application, though in
the case of some of the writs like habeas corpus or quo warranto this
rule is relaxed or modified. In other words, as a general rule,
infringement of some legal right or prejudice to some legal interest
inhering in the petitioner is necessary to give him a locus standi in
the matter, (see State of Orissa v. Madan Gopal Rungta [1951 SCC
1024 : AIR 1952 SC 12 : 1952 SCR 28] ; Calcutta Gas Co. v. State
of W.B. [AIR 1962 SC 1044 : 1962 Supp (3) SCR 1] ; Ram Umeshwari
Suthoo v. Member, Board of Revenue, Orissa [(1967) 1 SCA 413] ;
Gadde Venkateswara Rao v. Government of A.P. [AIR 1966 SC 828 :
(1966) 2 SCR 172] ; State of Orissa v. Rajasaheb Chandanmall
[(1973) 3 SCC 739] ; Satyanarayana Sinha Dr v. S. Lal & Co. [(1973)
2 SCC 696 : (1973) SCC (Cri) 1002] ).
35. The expression “ordinarily” indicates that this is not a cast-iron
rule. It is flexible enough to take in those cases where the applicant
has been prejudicially affected by an act or omission of an authority,
even though he has no proprietary or even a fiduciary interest in the
subject-matter. That apart, in exceptional cases even a stranger or
a person who was not a party to the proceedings before the authority,
but has a substantial and genuine interest in the subject-matter of
the proceedings will be covered by this rule. The principles
enunciated in the English cases noticed above, are not inconsistent
with it.
…
23
(1976) 1 SCC 671
23
38. The distinction between the first and second categories of
applicants, though real, is not always well-demarcated. The first
category has, as it were, two concentric zones; a solid central zone
of certainty, and a grey outer circle of lessening certainty in a sliding
centrifugal scale, with an outermost nebulous fringe of uncertainty.
Applicants falling within the central zone are those whose legal rights
have been infringed. Such applicants undoubtedly stand in the
category of “persons aggrieved”. In the grey outer circle the bounds
which separate the first category from the second, intermix, interfuse
and overlap increasingly in a centrifugal direction. All persons in this
outer zone may not be “persons aggrieved”.
39. To distinguish such applicants from “strangers”, among them,
some broad tests may be deduced from the conspectus made above.
These tests are not absolute and ultimate. Their efficacy varies
according to the circumstances of the case, including the statutory
context in which the matter falls to be considered. These are:
Whether the applicant is a person whose legal right has been
infringed? Has he suffered a legal wrong or injury, in the sense, that
his interest, recognised by law, has been prejudicially and directly
affected by the act or omission of the authority, complained of? Is he
a person who has suffered a legal grievance, a person
“against whom a decision has been pronounced which has
wrongfully deprived him of something or wrongfully refused
him something, or wrongfully affected his title to something?”
Has he a special and substantial grievance of his own beyond some
grievance or inconvenience suffered by him in common with the rest
of the public? Was he entitled to object and be heard by the authority
before it took the impugned action? If so, was he pr ejudicially
affected in the exercise of that right by the act of usurpation of
jurisdiction on the part of the authority? Is the statute, in the context
of which the scope of the words “person aggrieved” is being
considered, a social welfare measure designed to lay down ethical or
professional standards of conduct for the community? Or is it a
statute dealing with private rights of particular individuals?
…
48. In the light of the above discussion, it is demonstrably clear that
the appellant has not been denied or deprived of a legal right. He has
not sustained injury to any legally protected interest. In fact, the
impugned order does not operate as a decision against him, much
less does it wrongfully affect his title to something. He has not been
subjected to a legal wrong. He has suffered no legal grievance. He
has no legal peg for a justiciable claim to hang on. Therefore he is
not a “person aggrieved” and has no locus standi to challenge the
grant of the no-objection certificate.
(emphasis ours)
61. The question as to whether the Andhra Pradesh Public Service
Commission had the locus standi to file a special leave petition before
this Court, in the given facts, came up for consideration in A.P. Public
24
Service Commission v. Baloji Badhavath
24
. This Court had the
occasion to observe thus:
46. So far as the question of locus standi of the appellant to file this
special leave petition is concerned, we are of the opinion that it has
the locus standi. The High Court not only has set aside GOMs dated
31-12-1997 but it has also set aside Notification dated 27-12-2007.
If the High Court’s judgment is to be implemented, a fresh selection
procedure has to be undertaken by the appellant. Furthermore, in
terms of Order 41 Rule 4 of the Code of Civil Procedure, the appellate
court, in the event, finds merit in the appeal at the instance of one
of the respondents may set aside the entire judgment although
another respondent had not appealed thereagainst. The Commission
had undertaken the task of holding preliminary examination. It had
followed the procedure laid down in its notification issued in this
behalf and the GOMs issued by the State. It, therefore, could
maintain a writ petition.
62. Office of the Odisha Lokayukta v. Dr. Pradeep Kumar Panigrahi
and Ors.
25
is another decision where this Court was called upon to
decide whether the Lokayukta, who was responsible for conducting the
preliminary inquiry and which was interfered with by the High Court, had
the locus standi to file a special leave petition before this Court. The
relevant passage therefrom reads as follows:
39. The further objection raised by the respondents is in reference
to the locus standi of the appellant in filing appeal in this Court and
in support of his submission, counsel placed reliance on the
judgments of this Court in National Commission for Women v. State
of Delhi [(2010) 12 SCC 599] and M.S. Kazi v. Muslim Education
Society [(2016) 9 SCC 263]. In our considered view, the submission
is wholly bereft of merit for the reason that the action of the appellant
initiated pursuant to order dated 11
th
December, 2020 for conducting
a preliminary inquiry in exercise of powers conferred under
Section 20(1) of the Act, 2014 was a subject matter of challenge
before the High Court at the instance of respondent no. 1 and if that
is being interfered with and the action of the appellant is being set
aside under the impugned judgment dated 3
rd
February, 2021, the
appellant, indeed, was a person aggrieved and has a locus standi to
question the action interfered with by the Division Bench of the High
Court and the only remedy available with the appellant is to question
the order of the Division Bench of the High Court by filing an special
leave petition in this Court under Article 136 of the Constitution.
24
(2009) 5 SCC 1
25
2023 SCC OnLine SC 17539
25
63. Moving to a slightly different context, we notice in Jatan Kumar Golcha
v. Golcha Properties (P) Ltd.
26
that this Court held it to be well settled
that a person who is not a party to the suit may prefer an appeal with
the leave of the appellate court and such leave should be granted if he
would be prejudicially affected by the judgment.
64. In State of Punjab v. Amar Singh
27
, a three-judge Bench of this Court
speaking on the general rule as to who can appeal held as follows:
29. …The ordinary rule is that only a party to a suit adversely
affected by the decree or any of his representatives-in-interest may
file an appeal. Under such circumstances a person who is not a party
may prefer an appeal with the leave of the appellate court “if he
would be prejudicially affected by the judgment and if it would be
binding on him as res judicata under Explanation 6 to Section 11”.
(see Mulla: Civil Procedure Code, 13th Edn., Vol. 1, p. 421) …
65. Taking a cue from the aforesaid precedents, to our mind, it is clear that
a person aggrieved having locus standi to prefer an appeal would be one
who is directly affected or impacted by a judgment, order or decision
even though the same does not directly require him to do something,
or, one, who being a party to a suit, is adversely affected by the decree.
To file an appeal, such a person typically needs to show affectation of a
legal right or interest, or that he is likely to suffer a legal wrong as a
result of its impact. A mere interest or concern in the subject matter
decided by the original court would not be enough.
66. It is also relevant to consider whether the party seeking to appeal was
a party to the proceedings before the original court. If he was and a
26
(1970) 3 SCC 573
27
(1974) 2 SCC 70
26
decision is given jeopardising his interest, he would necessarily have a
right of carrying such decision to be tested in an appeal. It is only in
exceptional cases that a party-respondent may be told off at the gates
by the appellate court on the ground of lack of affectation of right or
interest.
67. Premised on the above discussion, a s a general proposition, we
summarise the conditions that need to be satisfied before a person is
entitled to maintain an appeal. These are:
1) that the appealing party has been a party in the proceedings from
which the appeal has arisen;
2) that the definitive and conclusive ruling of the High Court on the
rights of the parties in dispute is the subject of the appeal; and
3) that he is a ‘person aggrieved’, that is, a party who has been
adversely affected by the determination.
68. Condition (1) supra may, however, stand relaxed in given cases as
emphasised in Jatan Kumar Golcha (supra) and Amar Singh (supra).
69. Applying the aforesaid principles, we now propose to consider whether
the appellant had locus standi to appeal notwithstanding that the State
of Rajasthan had chosen not to do so.
70. Article 315 of the Constitution lays down that there shall be a Public
Service Commission for the Union and one for each State . Appellant,
therefore, owes its existence to the Constitution. Under Article 320, it is
inter alia the duty of the appellant to conduct examinations for
appointments to the services of the State of Rajasthan . Also, the
appellant has to be consulted by the State of Rajasthan on all matters
27
referred to in clause (3) of Article 320 and it is the duty of the appellant
to advise the State on any matter so referred.
71. The method and manner of conducting the recruitment process and
other ancillary matters are generally provided by recruitment rules,
which in these appeals are the Rajasthan Legal State and Subordinate
Services Rules, 1981
28
and the Rajasthan Agriculture Subordinate
Service Rules, 1978
29
. As of necessity, the relevant rule has to be looked
into for determining as to when and to what extent any candidate
figuring in the waiting/reserve list drawn up by the appellant acquires a
right to claim appointment based on his position in such list.
72. Our discussion ought to be taken forward by noticing a passage from
the decision of a three-Judge Bench in Jatinder Kumar v. State of
Punjab
30
, where this Court held:
12. The establishment of an independent body like Public Service
Commission is to ensure selection of best available persons for
appointment in a post to avoid arbitrariness and nepotism in the
matter of appointment. It is constituted by persons of high ability,
varied experience and of undisputed integrity and further assisted by
experts on the subject. It is true that they are appointed by
Government but once they are appointed their independence is
secured by various provisions of the Constitution. Whene ver the
Government is required to make an appointment to a higher public
office it is required to consult the Public Service Commission. The
selection has to be made by the Commission and the Government
has to fill up the posts by appointing those selected and
recommended by the Commission adhering to the order of merit in
the list of candidates sent by the Public Service Commission. The
selection by the Commission, however, is only a recommendation of
the Commission and the final authority for appointment is the
Government. The Government may accept the recommendation or
may decline to accept the same. But if it chooses not to accept the
recommendation of the Commission the Constitution enjoins the
Government to place on the table of the Legislative Assembl y its
reasons and report for doing so. Thus, the Government is made
answerable to the House for any departure vide Article 323 of the
28
Rajasthan Rules, 1981
29
Rajasthan Agriculture Rules, 1978
30
(1985) 1 SCC 182
28
Constitution. 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
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.
73. What stands out from the above passage is that although the
recommendations made by a Public Service Commission are not binding
and hence, may or may not be accepted by the Government of the State,
one thing is clear: the latter has no authority to appoint anyone not
recommended by the former.
74. Regard being had to the nature of duties and functions of the appellant
and that the State could only appoint such candidates as are
recommended by the appellant, no claim for consideration/appointment
could have been possible without the writ petitioners being
recommended by the appellant and through a process by which it is way-
laid. If a direction to the State violates a certain statutory rule, why
should the appellant not be considered an aggrieved person?
Concomitantly, in our considered opinion, a direction to the State of
Rajasthan to appoint a candidate from the waiting list who has not been
recommended for appointment does give the appellant a legal peg for a
justiciable claim to hang on.
75. In any event, there is one other feature that we have noticed from the
orders of the Single Judges. Ultimately, while disposing of the writ
29
petitions, the Single Judges did not direct the State of Rajasthan and/or
its officers only to implement its orders; on the contrary, directions were
given to the “respondents” in the writ petition to act in a particular
manner. Appellant being one of such “respondents” and if the State of
Rajasthan, acting in compliance with the orders had requisitioned the
names of the writ petitioners from the appellant and the appellant were
to refuse to make any recommendation on the ground that the waiting
list has lapsed or on any other valid ground, it would be a clear case of
contempt. Thus, the Division Bench fell in error in holding that the
directions of the Single Judges were not for the appellant before us to
comply.
76. We are, therefore, constrained to hold that the appellant did fit in the
category of a person “aggrieved” by the orders of the Single Judges of
the High Court and did have the locus standi to approach the Division
Bench for the reasons discussed above.
77. The writ petitioners have relied on the decision in A.P. Public Service
Commission v. P. Chandra Mouleesware Reddy
31
to contend that
the appellant has no locus standi since there has been no direction to
conduct a fresh selection process. We find that this decision is not
applicable in the present case. In that case, only ten (10) of the nineteen
(19) proposed vacancies were filled due to the mistake of the State
which it accepted. It did not challenge the order of the competent
Tribunal. As the order of the Tribunal was not found to be unjustified,
the High Court of Andhra Pradesh refused to interfere therewith. Since
31
(2006) 8 SCC 330
30
the Public Service Commission was not required to carry out any fresh
exercise to comply with the direction of the Tribunal and since the State
had already accepted its mistake, observations were made in such
context that it did not have locus standi.
78. In P. Chandra Mouleesware Reddy (supra), it has not been laid down
that only when a Public Service Commission is directed to conduct a
fresh selection process, it would acquire the locus standi to appeal
against such direction. The present appeals do not present a comparable
situation and hence, the relied on decision is of no help to the writ
petitioners.
79. The question of maintainability of the “Special Appeals” before the
Division Bench is, thus, answered in favour of the appellant.
ISSUES B, C AND D - ON MERITS OF THE RIVAL CLAIMS :
80. These issues are addressed together since they are inter-related.
A WAITING LIST
81. What is a waiting list? What is the extent of right that could be claimed
by a wait-listed candidate for securing an appointment? For answering
this question, one may immediately read the decision of a three-Judge
Bench of this Court in Gujarat State Dy. Executive Engineers' Assn.
v. State of Gujarat
32
. Relevant extracts from it read as follows:
8. Coming to the next issue, the first question is what is a waiting
list?; can it be treated as a source of recruitment from which
candidates may be drawn as and when necessary?; and lastly how
long can it operate? These are some important questions which d o
arise as a result of direction issued by the High Court. A waiting list
prepared in service matters by the competent authority is a list of
32
1994 Supp (2) SCC 591
31
eligible and qualified candidates who in order of merit are placed
below the last selected candidate. How it should operate and what is
its nature may be governed by the rules. Usually it is linked with the
selection or examination for which it is prepared. For instance, if an
examination is held say for selecting 10 candidates for 1990 and the
competent authority prepares a waiting list then it is in respect of
those 10 seats only for which selection or competition was held.
Reason for it is that whenever selection is held, except where it is for
single post, it is normally held by taking into account not only the
number of vacancies existing on the date when advertisement is
issued or applications are invited but even those which are likely to
arise in future within one year or so due to retirement etc. It is more
so where selections are held regularly by the Commission. Such lists
are prepared either under the rules or even otherwise mainly to
ensure that the working in the office does not suffer if the selected
candidates do not join for one or the other reason or the next
selection or examination is not held soon. A candidate in the waiting
list in the order of merit has a right to claim that he may be appointed
if one or the other selected candidate does not join. But once the
selected candidates join and no vacancy arises due to resignation etc.
or for any other reason within the period the list is to operate under
the rules or within reasonable period where no specific period is
provided then candidate from the waiting list has no right to claim
appointment to any future vacancy which may arise unless the
selection was held for it. He has no vested right except to the limited
extent, indicated above, or when the appointing authority acts
arbitrarily and makes appointment from the waiting list by picking
and choosing for extraneous reasons.
9. A waiting list prepared in an examination conducted by the
Commission does not furnish a source of recruitment. It is operative
only for the contingency that if any of the selected candidates does
not join then the person from the waiting list may be pushed up and
be appointed in the vacancy so caused or if there is some extreme
exigency the Government may as a matter of policy decision pick up
persons in order of merit from the waiting list. But the view taken by
the High Court that since the vacancies have not been worked out
properly, therefore, the candidates from the waiting list were liable
to be appointed does not appear to be sound. This practice, may
result in depriving those candidates who become eligible for
competing for the vacancies available in future. If the waiting list in
one examination was to operate as an infinite stock for appointments,
there is a danger that the State Government may resort to the device
of not holding an examination for years together and pick up
candidates from the wa iting list as and when required. The
constitutional discipline requires that this Court should not permit
such improper exercise of power which may result in creating a
vested interest and perpetrate waiting list for the candidates of one
examination at the cost of entire set of fresh candidates either from
the open or even from service.
(emphasis ours)
32
82. Gujarat State Dy. Executive Engineers' Assn. (supra) was cited with
approval in Surinder Singh v. State of Punjab
33
. This Court observed,
and we say rightly, that waiting lists are not perennial sources of
recruitment and that candidates on the waiting list have no vested right
to be appointed except to the limited extent that when a candidate
selected does not join and the waiting list is still operative.
83. In Rakhi Roy v. High Court of Delhi
34
, once again this Court reiterated
that a waiting list cannot be used as a reservoir to fill up vacancies which
come into existence after issuance of notification / advertisement.
84. The rationale behind preparing fresh select lists and not operating stale
lists was considered by this Court in M.P. Electricity Board v. Virendra
Kumar Sharma
35
. While allowing the appeal carried by the employer
from the decision of the High Court of Madhya Pradesh, this Court had
this to say:
5. Any scheme for selection will depend upon the terms on which
selections are made. In the present case, there is a scheme as
provided in the circular dated 9-12-1968 and that circular also
provided for the panel to be valid/current for a particular period
namely one year. After that period, the list would lapse and fresh
panel has to be prepared. If that is the scheme, none of the decisions
relied upon by the learned counsel for the respondent would be of
any assistance. The High Court is also not justified in relying upon
the decision in Shivsingh case [(1988) 1 MPWN 24] inasmuch as the
scheme of appointment was entirely different. Moreover the
validity/currency of panel was for a particular period; that is a
salutary principle, behind that Rule so that after the selections are
made and appointments to be made may take long time, it is possible
that new candidates may have become available who are better or
more qualified than those selected, and if they are appointed it would
be in the best interests of the institution. Hence we do not think there
was any justification for the High Court to have interfered in the
matter and directed appointment of the respondent. The order made
33
(1997) 8 SCC 488
34
(2010) 2 SCC 637
35
(2002) 9 SCC 650
33
by the High Court is set aside and the writ petition filed by the
respondent shall stand dismissed.
(emphasis ours)
85. A similar case such as the present is the one decided by this Court in
U.P. Public Service Commission v. Surendra Kumar
36
. It would be
useful to reproduce below what was ruled by this Court:
12. Having heard the learned counsel on both sides, we have perused
the order dated 18-5-2018 passed by the High Court and other
material placed on record. For the purpose of operating wait-list, the
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 the appellant
Commission, after declaring results of the examination, has made
initial recommendation for substantive number of posts i.e. 156 posts
vide letter dated 12-8-2010. 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 12-8-2010. When recommendations were made for
substantive number of posts on 12-8-2010, we are of the view that
period of one year for operating wait-list is to be computed from 12-
8-2010 but not from the last recommendation made for one post,
vide letter dated 28-8-2012. The reason for restricting 156 names in
the initial recommendation vide letter dated 12-8-2010, is explained
in Para 11 of the counter-affidavit filed before the High Court.
(emphasis ours)
86. The key aspects of a waiting list, in relation to service law disputes, that
can be deduced from the aforesaid decisions is this:
(i) a waiting list is normally prepared after the select/merit list is
drawn;
(ii) it would include candidates who have qualified the recruitment
examination but are not so meritorious such that they can be
immediately appointed on the number of vacancies advertised;
36
(2019) 2 SCC 195
34
(iii) such list would operate like a merit-based queue for vacancies
that remain unfilled after offers of appointment given to the
candidates in the select/merit list are not accepted;
(iv) a waiting list has a limited validity period;
(v) validity period of a waiting list depends on the recruitment rules
and should no such period be mentioned, it can bona fide be
operated till the next advertisement is issued without, however,
violating provisions in such rules, if any, requiring recruitment
process to be initiated either semi-annually or annually; and
(vi) an opportunity to a candidate in the waiting list for securing
appointment arises only when vacancies remain unfilled after the
process of appointing candidates from the select/merit list is over
and hence, it is regarded as a procedural outcome which is part
of a structured process rather than a fortuitous circumstance.
87. Quite often, appointing authorities have to justify in course of
proceedings before a court of law its refusal to appoint candidates
figuring in the waiting list. Broadly, two situations emerge depending
upon the reaction of the selected candidate upon receiving an offer of
appointment. The first situation is, he may not accept the offer within
the permitted time and the offer gets cancelled. If the waiting list is alive
on the date of cancellation, there is no reason why the candidate figuring
at the top of such list should not be offered appointment. An acceptable
reason has to be provided in support of non -appointment by the
appointing authority, because a public employer has no license to act
arbitrarily. The second situation arises when the selected candidate upon
35
receiving an offer of appointment accepts such offer, joins the post but
resigns immediately or some time thereafter. This could again result in
emergence of two situations. The first is, when the resignation takes
place during the validity period of the waiting list. In such a situation,
the candidate next in line can legitimately be offered appointment,
provided the waiting list is alive. Again, acceptable reason has to be
assigned to justify non-appointment. However, upon resignation
happening at a point of time when the waiting list is no longer alive,
there is nothing much that the candidate can legitimately expect owing
to his/her position in the said list.
88. The canvas would be a bit different when the selection of candidates and
drawing up of the select/merit list followed by preparation of the waiting
list is by a Public Service Commission. Here, the recommendations have
to be preceded by requisitions. Even though cancellation of appointment
could have been effected during the period the waiting list is alive, unless
a requisition is made by the appointing authority, such a Commission
may not be bound to recommend any candidate from the waiting list.
Each case, therefore, has to be adjudicated based on the peculiar facts
as well as the governing rules.
89. Having noticed what a waiting list means and to what extent a wait -
listed candidate has any right, courts have to bear in mind the law laid
down by the Constitution Bench of this Court in Shankarsan Dash v.
Union of India
37
that a candidate included in a select/merit list does
not have an indefeasible right of appointment even if a vacancy exists.
37
(1991) 3 SCC 47
36
90. On a conspectus of the decisions of this Court governing the field of a
select/merit list as well as waiting list, as understood in service
jurisprudence, the law seems to be well-settled that when a candidate
included in a select/merit list has no indefeasible right of appointment,
it would be too far -fetched to think that a candidate in the
waiting/reserve list would have a better right than a candidate in the
select/merit list. We, thus, hold that a wait-listed candidate has no right
of appointment, much less an indefeasible right, except when the
governing recruitment rules permit a small window authorizing
appointments therefrom in the specified exceptional circumstances and
the appointing authority, for no good reason, denies or refuses an
appointment or the reason assigned therefor is found to be arbitrary
and/or discriminatory and that too, when the waiting list has not expired.
What should be given primacy, therefore, is the nature and extent of
right prescribed by the relevant rules.
DECISION ON THE CLAIMS OF THE WRIT PETITIONERS
91. Whether or not a claim of a candidate, who figures in a waiting/reserve
list ought to succeed or not must be tested bearing in mind the facts of
each particular case. Much depends on the date when the select/merit
list is drawn up together with the date of preparation of the waiting list,
the date on which names are requisitioned from a Public Service
Commission by the appointing authority of the State and the period of
validity of such list, as ordained by the relevant recruitment rules.
92. This segment of our analysis must begin with noticing the relevant rules
framed by the State of Rajasthan. Rule 24 of the Rajasthan Rules, 1981
37
and Rule 21 of the Rajasthan Agriculture Rules, 1978 are identically
worded. We quote Rule 21 below:
21. Recommendations of the Commission. - The commission shall
prepare a list of the candidate whom they consider suitable for
appointment to the posts concerned and arranged in the order of
merit. The Commission shall forward the list to the Appointing
Authority:
Provided that the Commission may to the extent of 50% of the
advertised vacancies, keep names of suitable candidate on the
reserve list. The commission may, on requisition, recommend the
names of such candidates in the order of merit to the appointing
authority within six months from the date on which the original list is
forwarded by the Commission to the Appointing Authority.
(emphasis ours)
93. Although neither Rule 24 nor Rule 21 in so many words stipulate that
the life of the reserve list would expire six months after the date the
original list is forwarded by the appellant to the appointing authority, it
does not confer any power on the appellant to forward the list thereafter
either. Meaningfully construed, particularly having regard to user of the
modal verb “may” twice in the same provision, we hold that not only is
it the discretion of the appellant to prepare a reserve list, it is also in its
discretion to forward names of candidates from the reserve list upon
receiving a requisition in that behalf. However, exercise of the discretion
not to forward names of candidates from the reserve list has to be
supported by valid reasons.
94. It is noted that the Department of Personnel, Government of Rajasthan,
had issued a series of circulars clarifying the legal position governing the
operation of reserve lists in direct recruitment through the Rajasthan
Public Service Commission.
(i) By circular dated 19
th
January 2001, the Department clarified that
a reserve list, permissible up to 50% of the advertised vacancies,
38
is not an independent source of recruitment but is confined to the
selection for which it is prepared, operable only to meet
contingencies of non-joining of selected candidates and strictly
within six months from the date on which the original
recommendation is forwarded by the Commission to the
Government. It was further clarified that vacancies arising after a
selected candidate has joined and subsequently resigned are
future vacancies and that, upon initiation of a fresh recruitment
process, the earlier selection and reserve list lapse.
(ii) By a subsequent circular dated 13
th
January 2016, the Department
clarified that where the original recommendation is forwarded in
parts or upon revision, the six-month period for operating the
reserve list shall be reckoned from the date of dispatch of the last
part of the original recommendation, provided the recruitment
process has not attained finality or the resultant vacancies have
not been carried forward into a subsequent recruitment cycle. In
such cases, the six-month period would similarly commence from
the date of transmission of the final recommendation.
(iii) Finally, the Department of Personnel, by its circular dated 26
th
April 2018, clarified that for the purposes of determining when a
fresh recruitment process commences, the date of holding of the
next examination shall be treated as the date of initiation of the
fresh process. Consequently, once the examination for the
subsequent recruitment is held, the earlier selection process and
its reserve list stand lapsed by operation of policy.
39
95. Law is well settled that executive instructions may supplement, but not
supplant, statutory rules and should be subservient to statutory
provisions. A profitable reference may be made to the decision of this
Court in Union of India v. Ashok Kumar Aggarwal
38
in this regard.
96. In any event, these are clarificatory circulars which cannot override the
statutory rules.
97. It would not be inapt, at this stage, to recapitulate the bare facts leading
to invocation of the writ jurisdiction of the High Court by the writ
petitioners.
(i) Yati Jain invoked the writ jurisdiction sometime in June, 2022.
However, it is noticed that upon declaration of result of selection
on 15
th
April, 2021 and preparation of a provisional reserve list on
the same date, names of one hundred fifty-two (152) candidates
from the original list was forwarded on 7
th
June, 2021 to the
Appointing Authority. The last recommendation was made by the
appellant on 10
th
August, 2021. In light of a meaningful
construction of Rule 24, bearing in mind the decision in Surendra
Kumar (supra), the reserve list could remain alive and effective
for six months from 7
th
June, 2021, i.e., till 6
th
December, 2021.
If an extended life were to be given, at the highest, the reserve
list (if six months were counted from 10
th
August, 2021) could
remain alive till 6
th
February, 2022. Thus, no candidate in the
reserve list, in view of Rule 24, could legitimately claim a right to
be recommended for appointment beyond the statutorily
38
(2013) 16 SCC 147
40
prescribed limit of six months. However, merely because one
candidate did not join service and his offer of appointment was
cancelled on 14
th
July, 2022, such cancellation could not have
afforded any ground for any candidate from the waiting/reserve
list to claim that he/she ought to be recommended as if such list
continued to remain alive on the said date. The writ petition of Yati
Jain was, therefore, presented at a period of time when the
reserve list was no longer valid. Notably, candidates figuring in the
reserve list were recommended, between 19
th
April, 2022 and 22
nd
April, 2022 pursuant to requisition dated 27
th
January, 2022.
Requisition from the Appointing Authority to recommend names
from the reserve list having been received by the appellant within
six months from 10
th
August, 2021, the delay on the part of the
appellant to recommend names of candidates from the
waiting/reserve list could not have operated to their detriment.
Yati Jain, thus, had no right in law to claim that her name should
have been recommended by the appellant once the appointment
of the said Vikas Kumar was cancelled on 14
th
July, 2022. The High
Court, in our opinion, was, therefore, completely in error in
counting the period of six months for validity of the reserve list
from 22
nd
April, 2022.
(ii) Insofar as Aakriti Saxena is concerned, it is observed that result
of selection was declared on 3
rd
August, 2021 and
recommendation of candidates figuring in the select/merit list was
made by the appellant on 13
th
August, 2021. She approached the
41
writ court on 5
th
April, 2022. The six-month validity period of the
reserve list, therefore, ought to have been counted from 13
th
August, 2021 and not from the date of cancellation of appointment
offered to the said Sunil Machhera. As noted above, the concerned
department did not even requisition any name from the appellant
for filling up the vacancy caused by reason of cancellation of
appointment of the said Sunil Machhera. Here too, the Single
Judge erred in counting the period of six months from the date of
cancellation of appointment of the said Sunil Machhera.
(iii) Vivek Kumar Meena also does not stand on substantially firmer
ground. Initially, names were recommended by the appellant
between 11
th
December, 2015 and 30
th
March, 2016. Pursuant to
requisition dated 9
th
June, 2016 received from the Appointing
Authority, candidates from the waiting/reserve list were
recommended on 8
th
August, 2016. It is true that in terms of Rule
24 of the Rajasthan Rules, 1981, the reserve list had expired and
outlived its utility on 8
th
August, 2016. In any event, names from
such expired list were recommended which is sought to be made
the sheet anchor of the claim of Vivek Kumar Meena for
appointment, who presented his writ petition on 17
th
October,
2016. The Single Judge, while disposing of the writ petition of
Vivek Kumar Meena, found himself bound by the decisions of
Division Benches of the High Court but was cautious in not
directing that the name of Vivek Kumar Meena be “picked up” from
the waiting/reserve list realising that the same had expired long
42
back; hence, a direction for consideration of his candidature
followed swayed more by recommendations made from the
expired list. This was plainly not permissible.
98. Claim of parity having been urged pointing to the six (6) and twenty
seven (27) candidates who were recommended from the reserve list
beyond expiry of its life, we need to consider the same now . Such a
claim is not sustainable for two reasons: (i) no challenge has been laid
to their recommendations and consequent appointments and (ii) no
person can claim “negative equality” under the Indian Constitution.
99. The immortal words of B.P. Jeevan Reddy, J. (as His Lordship then was)
in the decision in Chandigarh Admn istration v. Jagjit Singh
39
still
echoes to answer the claim raised by the writ petitioners. The relevant
passage reads as follows:
8. We are of the opinion that the basis or the principle, if it can be
called one, on which the writ petition has been allowed by the High
Court is unsustainable in law and indefensible in principle. Since we
have come across many such instances, we think it necessary to deal
with such pleas at a little length. Generally speaking, the mere fact
that the respondent-authority has passed a particular order in the
case of another person similarly situated can never be the ground for
issuing a writ in favour of the petitioner on the plea of discrimination.
The order in favour of the other person might be legal and valid or it
might not be. That has to be investigated first before it can be
directed to be followed in the case of the petitioner. If the order in
favour of the other person is found to be contrary to law or not
warranted in the facts and circumstances of his case, it is obvious
that such illegal or unwarranted order cannot be made the basis of
issuing a writ compelling the respondent-authority to repeat the
illegality or to pass another unwarranted order. The extraordinary
and discretionary power of the High Court cannot be exercised for
such a purpose. Merely because the respondent-authority has passed
one illegal/unwarranted order, it does not entitle the High Court to
compel the authority to repeat that illegality over again and again.
The illegal/unwarranted action must be corrected, if it can be done
according to law — indeed, wherever it is possible, the Court should
direct the appropriate authority to correct such wrong orders in
accordance with law — but even if it cannot be corrected, it is difficult
39
(1995) 1 SCC 745
43
to see how it can be made a basis for its repetition. By refusing to
direct the respondent-authority to repeat the illegality, the Court is
not condoning the earlier illegal act/order nor can such illegal order
constitute the basis for a legitimate complaint of discrimination.
Giving effect to such pleas would be prejudicial to the interests of law
and will do incalculable mischief to public interest. It will be a
negation of law and the rule of law. Of course, if in case the order in
favour of the other person is found to be a lawful and justified one it
can be followed and a similar relief can be given to the petitioner if it
is found that the petitioners' case is similar to the other persons'
case. But then why examine another person's case in his absence
rather than examining the case of the petitioner who is present
before the Court and seeking the relief. Is it not more appropriate
and convenient to examine the entitlement of the petitioner before
the Court to the relief asked for in the facts and circumstances of his
case than to enquire into the correctness of the order made or action
taken in another person's case, which other person is not before the
case nor is his case. In our considered opinion, such a course —
barring exceptional situations — would neither be advisable nor
desirable. In other words, the High Court cannot ignore the law and
the well-accepted norms governing the writ jurisdiction and say that
because in one case a particular order has been passed or a particular
action has been taken, the same must be repeated irrespective of
the fact whether such an order or action is contrary to law or
otherwise. Each case must be decided on its own merits, factual and
legal, in accordance with relevant legal principles. The orders and
actions of the authorities cannot be equated to the judgments of the
Supreme Court and High Courts nor can they be elevated to the level
of the precedents, as understood in the judicial world. (What is the
position in the case of orders passed by authorities in exercise of
their quasi-judicial power, we express no opinion. That can be dealt
with when a proper case arises.)
(emphasis in original)
100. A profitable reference may also be made to the decision in State of
Odisha v. Anup Kumar Senapati
40
, wherein it was held as follows:
39. It was lastly submitted that concerning other persons, the orders
have been passed by the Tribunal, which was affirmed by the High
Court and grants-in-aid have been released under the 1994 Order as
such on the ground of parity this Court should not interfere. No
doubt, there had been a divergence of opinion on the aforesaid issue.
Be that as it may. In our opinion, there is no concept of negative
equality under Article 14 of the Constitution. In case the person has
a right, he has to be treated equally, but where right is not available
a person cannot claim rights to be treated equally as the right does
not exist, negative equality when the right does not exist, cannot be
claimed.
(emphasis ours)
40
(2019) 19 SCC 626
44
101. Perpetuation of illegality ought to be shunned by any Court of law. This
forms the basis for denying the plea of negative equality; a view that
has clearly been reiterated very recently in Tinku v. State of
Haryana
41
as follows:
11. The very idea of equality enshrined in Article 14 is a concept
clothed in positivity based on law. It can be invoked to enforce a
claim having sanctity of law. No direction can, therefore, be issued
mandating the State to perpetuate any illegality or irreg ularity
committed in favour of a person, an individual, or even a group of
individuals which is contrary to the policy or instructions applicable.
Similarly, passing of an illegal order wrongfully conferring some right
or claim on someone does not entitle a similar claim to be put forth
before a court nor would court be bound to accept such plea. The
court will not compel the authority to repeat that illegality over again.
If such claims are entertained and directions issued, that would not
only be against the tenets of the justice but would negate its ethos
resulting in the law being a causality culminating in anarchy and
lawlessness. The Court cannot ignore the law, nor can it overlook the
same to confer a right or a claim that does not have legal sanction.
Equity cannot be extended, and that too negative to confer a benefit
or advantage without legal basis or justification.
(emphasis ours)
102. Law being too well-settled, the illegality in recommending some of the
candidates figuring in the reserve list could not have been made the
basis for issuance of a writ of mandamus citing Article 14 of the
Constitution.
103. Quite apart, there is one other serious flaw which the Single Judges
failed to notice. The writ petitioners did not invoke the writ jurisdiction
within the six months’ time period during which the reserve list would
have been alive and effective. In fact, the writ petitions were presented
after expiry of such period. What would be the effect thereof? Can any
benefit accrue in their favour even though the writ petitions were
41
2024 SCC OnLine SC 3292
45
presented at a time when, for all intents and purposes, the reserve lists
was dead and ineffective?
104. The answers to such questions are not far to seek. In Harish Chandra
(supra), this Court had the occasion to consider whether candidates
figuring in a merit list, which had expired on the date they approached
the high court seeking mandamus, could have complained of breach of
any legal right arising out of their non-appointment. It was held thus:
9. Coming to the merits of the matter, in view of the Statutory Rules
contained in Rule 26 of the Recruitment Rules the conclusion is
irresistible that a select list prepared under the Recruitment Rules
has its life only for one year from the date of the preparation of the
list and it expires thereafter. Rule 26 is extracted hereinbelow in
extenso:
***
10. Notwithstanding the aforesaid Statutory Rule and without
applying the mind to the aforesaid Rule the High Court relying upon
some earlier decisions of the Court came to hold that the list does
not expire after a period of one year which on the face of it is
erroneous. Further question that arises in this context is whether the
High Court was justified in issuing the mandamus to the appellant to
make recruitment of the writ petitioners. Under the Constitution a
mandamus can be issued by the court when the applicant establishes
that he has a legal right to the performance of legal duty by the party
against whom the mandamus is sought and the said right was
subsisting on the date of the petition. The duty that may be enjoined
by mandamus may be one imposed by the Constitution or a Statute
or by Rules or orders having the force of law. But no mandamus can
be issued to direct the Government to refrain from enforcing the
provisions of law or to do something which is contrary to law. This
being the position and in view of the Statutory Rules contained in
Rule 26 of the Recruitment Rules we really fail to understand how the
High Court could issue the impugned direction to recruit the
respondents who were included in the select list prepared on 4-4-
1987 and the list no longer survived after one year and the rights, if
any, of persons included in the list did not subsist. In the course of
hearing the learned counsel for the respondents, no doubt have
pointed out some materials which indicate that the Administrative
Authorities have made the appointments from a list beyond the
period of one year from its preparation. The learned counsel
appearing for the appellants submitted that in some cases pursuant
to the direction of the Court some appointments have been made but
in some other cases it might have been done by the appointing
authority. Even though we are persuaded to accept the submission
of the learned counsel for the respondents that on some occasions
appointments have been made by the appointing authority from a
select list even after the expiry of one year from the date of selection
46
but such an illegal action of the appointing authority does not confer
a right on an applicant to be enforced by a court under Article 226 of
the Constitution. We have no hesitation in coming to the conclusion
that such appointments by the appointing authority have been made
contrary to the provisions of the Statutory Rules for some unknown
reason and we deprecate the practice adopted by the appointing
authority in making such appointments contrary to the Statutory
Rules. But at the same time it is difficult for us to sustain the direction
given by the High Court since, admittedly, the life of the select list
prepared on 4-4-1987 had expired long since and the respondents
who claim their rights to be appointed on the basis of such list did
not have a subsisting right on the date they approached the High
Court. We may not be understood to imply that the High Court must
issue such direction, if the writ petition was filed before the expiry of
the period of one year and the same was disposed of after the expiry
of the statutory period. In view of the aforesaid conclusion of ours it
is not necessary to deal with the question whether the stand of the
State Government that there existed one vacancy in the year 1987
is correct or not.
(emphasis ours)
105. Plainly, therefore, the writ petitions could not have been entertained
having regard to the dates of its presentation. On such dates, the
reserve lists had expired and none of the writ petitioners figuring in such
lists could claim any right to seek a mandamus of the nature issued by
the Single Judges.
106. Much of what Mr. Parameshwar has argued fails to impress us because
none of the writ petitioners subjected Rule 24 of the Rajasthan Rules,
1981 or Rule 21 of the Rajasthan Agriculture Rules, 1978 to any
challenge. Without challenging Rule 24/Rule 21 and on the face of such
rule not generating any absurd result, we are inclined to read the same
literally and not in the manner Mr. Parameshwar would like us to read it.
107. We have noted the submissions advanced on behalf of the writ
petitioners in substantial detail. Such submissions proceed on a
fallacious understanding of the law relating to a waiting/reserve list. We
might sound harsh but solely based on the result of selection the reality
47
is that, the candidates who figure in a waiting/reserve list are not the
best crop of aspirants applying for selection. If the appointing authority
has valid reasons not to appoint candidates from the waiting/reserve list
and sets up whatever defence, which is not found to be unreasonable or
arbitrary, a writ court having regard to the discretion that must be
conceded to the appointing authority to select the best talent for
appointment would be loath to interfere with such a decision and not
command, by a mandamus, to appoint candidates figuring in the
waiting/reserve list.
108. The line of judicial precedents noticed above suggest that even a
candidate figuring in the select/merit list has no indefeasible right of
appointment. Viewed from that stand point, we repeat, a candidate
figuring in the wating list cannot claim a better right than those who find
place in the select/merit list. He/she, therefore, can claim only as much
as the governing rules relating to recruitment enable or permit, more
particularly when the life of a waiting/reserve list is limited.
109. Having regard to the facts and circumstances present before us, we are
of the firm view that the first of the two Single Judges of the High Court
has completely erred in holding that Yati Jain “had subsisting right of
consideration for her candidature on merit against the post of JLO fallen
vacant due to non-joining of Vikas Kumar on the date of filing petition,
and thereafter for six months from 14-7-2022”. Similar such findings
have been returned in Aakriti Saxena’s writ petition where the Single
Judge held that her right accrued on 28
th
February, 2022, i.e., the date
when the said Sunil Machhera did not join service. Yet another similar
48
finding was recorded while disposing of the writ petition of Vijay Kumar
Meena by the other Single Judge that name from the reserve list should
have been requisitioned when the said Raj Kumar Meena did not join
service and his appointment was subsequently cancelled on 09
th
December, 2016.
110. Rule 24 of the Rajasthan Rules, 1981 and Rule 21 of the Rajasthan
Agriculture Rules, 1978 admit of no confusion and clearly envisage that
a candidate figuring in the reserve list, comprising names of candidates
half the number of vacancies advertised may be recommended within
six (6) months from the date on which the original list is forwarded by
the appellant to the Appointing Authority/concerned department. Such
prescription, in given cases, could reasonably be stretched for counting
six months from the date of last requisition made by the appellant
provided the select/merit list itself has life on such date and is, therefore,
valid and effective; but, in no case can such period be counted from the
date a selected candidate expresses disinclination to accept the offer of
appointment, which happens to be beyond the six -month statutorily
prescribed period. If one were to approve the approach taken by the
Single Judges, no selection process would ever attain finality. The six-
month limitation incorporated in the applicable rule is designed precisely
to bring about a quietus to the process of selection.
WHY THE RATIO OF THE RELIED UPON DECISIONS DO NOT APPLY
111. In Manoj Manu (supra) this Court held the action of the Union Public
Service Commission not to forward the names of the appellants from the
reserve/supplementary list arbitrary and discriminatory. It was also held
49
that non-forwarding of names from the reserve list may not be justified,
especially when there is a specific requisition by the appointing authority
therefor. The relevant passage from the said decision reads as follows:
9. It can be clearly inferred from the reading of the aforesaid that it
is not the case where any of these persons initially joined as Section
Officer and thereafter resigned/left/promoted, etc. thereby creating
the vacancies again. Had that been the situati on viz. after the
vacancy had been filled up, and caused again because of some
subsequent event, position would have been different. In that
eventuality UPSC would be right in not forwarding the names from
the list as there is culmination of the process with the exhaustion of
the notified vacancies and vacancies arising thereafter have to be
filled up by fresh examination. However, in the instant case, out of
184 persons recommended, six persons did not join at all. In these
circumstances when the candidates in reserved list on the basis of
examination already held, were available and DoPT had approached
UPSC “within a reasonable time” to send the names, we do not see
any reason or justification on the part of UPSC not to send the names.
112. What distinguishes Manoj Manu (supra) in the present appeals is this.
Appellant recommended names from the reserve lists as and when
requisitions were received from the Appointing Authority/department
concerned and appointments were also offered to such recommended
candidates but insofar as the writ petitioners are concerned, they sought
relief because some candidate figuring in the select list did not accept
the appointment when offered and the Single Judges proceeded to grant
relief under the impression that the validity of the reserve list has to be
reckoned from the date the appointed candidate refused to join.
113. Paragraph 11 of the decision in Sat Pal (supra) appears to have been
relied on by the Single Judges, wherein it has been observed as follows:
11. In view of the factual position noticed hereinabove, the reason
indicated by the appellants in declining the claim of the respondent
Sat Pal for appointment out of the waiting list is clearly unjustified. A
waiting list would start to operate only after the posts for which the
recruitment is conducted, have been completed. A waiting list would
commence to operate when offers of appointment have been issued
50
to those emerging on the top of the merit list. The existence of a
waiting list allows room to the appointing authority to fill up vacancies
which arise during the subsistence of the waiting list. A waiting list
commences to operate after the vacancies for which the recruitment
process has been conducted have been filled up. In the instant
controversy the aforesaid situation for operating the waiting list had
not arisen, because one of the posts of Junior Engineer (Civil), Grade
II for which the recruitment process was conducted was actually
never filled up. For the reason that Trilok Nath had not assumed
charge, one of the posts for which the process of recruitment was
conducted, had remained vacant. That apart, even if it is assumed
for arguments sake, that all the posts for which the process of
selection was conducted were duly filled up, it cannot be disputed
that Trilok Nath who had participated in the same selection process
as the respondent herein, was offered appointment against the post
of Junior Engineer (Civil), Grade II on 22-4-2008. The aforesaid offer
was made consequent upon his selection in the said process of
recruitment. The validity of the waiting list, in the facts of this case,
has to be determined with reference to 22 -4-2008, because the
vacancy was offered to Trilok Nath on 22 -4-2008. It is the said
vacancy, for which the respondent had approached the High Court.
As against the aforesaid, it is the acknowledged position recorded by
the appellants in the impugned order dated 23 -8-2011 (extracted
above), that the waiting list was valid till May 2008. If Trilok Nath was
found eligible for appointment against the vacancy in question out of
the same waiting list, the respondent herein would be equally eligible
for appointment against the said v acancy. This would be the
unquestionable legal position, insofar as the present controversy is
concerned.
Although the above observations seem to aid the writ petitioners, we
also find observations in paragraph 16 to the following effect:
16. It is not as if the pleas raised at the hands of the appellants are
not fully legitimate. In the facts and circumstances of this case, for
reasons which would emerge from our instant order, we would decline
to invoke the jurisdiction vested in us under Article 136 of the
Constitution of India, for debating and deciding the technical pleas
advanced by the appellants. We would rather invoke our jurisdiction
under Article 142 of the Constitution of India for doing complete
justice in the cause in hand. Entertaining the instant appeals would
defeat the ends of justice for which the respondent Sat Pal had
approached the High Court. Entertaining the objections filed by the
appellants would result in deviating from the merits of the claim
raised by the respondent Sat Pal, before the High Court.
114. Reliance placed by the High Court on Sat Pal (supra) seems misplaced.
We could be not quite right but the opening two sentences of paragraphs
11 and 16 of Sat Pal (supra), which we have underlined in the excerpts
51
therefrom, do not align with each other. Even otherwise, relief was
ultimately granted to the respondent in exercise of power conferred by
Article 142 of the Constitution. We, therefore, do not read Sat Pal
(supra) as laying down a binding precedent.
115. In Ram Swarup Saroj (supra), the writ jurisdiction of the High Court
of Allahabad was invoked when the panel was alive. This Court declined
interference with the order of the said high court because validity of the
panel expired during pendency of litigation and more so when vacancies
were available for making appointment.
116. Ram Swarup Saroj (supra) was a case where the court was
approached when the panel was alive. It requires no emphasis that if a
litigant approaches the writ court with a grievance of not being offered
appointment from a panel when such panel is alive and if the same
(panel) expires during the time the writ petition is pending, that is a
situation over which the litigant cannot have any control; and, he cannot
be put to a disadvantage. The right to relief must relate back to the date
the litigant entered the portals of the writ court, if the litigant satisfies
such court that he has been illegally denied an appointment; and, in
such a case, it is open to the court to make such order that the justice
of the case demands and to set things right. Here, the writ petitioners
did not approach the writ court when the waiting/reserve lists were alive.
Hence, Ram Swarup Saroj (supra) does not aid them.
117. Heavy reliance was placed on paragraph 4 of the decision in
Purshottam (supra) by the Single Judges. We reproduce the same
hereunder:
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4. In view of the rival submission the question that arises for
consideration is whether a duly-selected person for being appointed
and illegally kept out of employment on account of untenable decision
on the part of the employer, can be denied the said appointment on
the ground that the panel has expired in the meantime. We find
sufficient force in the contention of Mr Deshpande appearing for the
appellant inasmuch as there is no dispute that the appellant was duly
selected and was entitled to be appointed to the post but for the
illegal decision of the screening committee which decision in the
meantime has been reversed by the High Court and that decision of
the High Court has reached its finality. The right of the appellant to
be appointed against the post to which he has been selected cannot
be taken away on the pretext that the said panel has in the meantime
expired and the post has already been filled up by somebody else.
Usurpation of the post by somebody else is not on account of any
defect on the part of the appellant, but on the erroneous decision of
the employer himself. In that view of the matter, the appellant’s right
to be appointed to the post has been illegally taken away by the
employer. We, therefore, set aside the impugned order and judgment
of the High Court and direct the Maharashtra State Electricity Board
to appoint the appellant to the post for which he was duly selected
within two months from today. We make it clear that appointment
would be prospective in nature.
118. However, the facts on consideration whereof the aforesaid view was
taken is relevant. Purshottam, the candidate, undisputably was selected
for the post of Assistant Personnel Officer meant for a Scheduled Tribe
category. He had produced the certificate of the Magistrate indicating
that he belongs to ‘Halba’ caste, which is undoubtedly a Scheduled Tribe.
However, the employer in accordance with the procedure prescribed
referred his case to the Caste Scrutiny Committee for verification. The
said committee being of the opinion that the appellant does not belong
to Halba caste denied him the right to be employed notwithstanding his
selection for the post in question. The said order of the Scrutiny
Committee was upheld in appeal but a writ petition being carried, the
High Court of Bombay came to the conclusion that the appellant does
belong to the Halba caste and therefore he was kept illegally out of
employment. The High Court of Bombay, therefore, directed the
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employer (Maharashtra State Electricity Board) to consider the case of
the appellant for appointment to the post of Assistant Personnel Officer
for which he had been duly selected. After the said judgment, the
appellant approached the authority but the authority not having given
the appointment in question, he again moved the High Court of Bombay.
By the impugned judgment, the High Court of Bombay was persuaded
to accept the contention of the employer that, in the meantime,
somebody else has been appointed to the post and as such there is no
vacancy and further, in terms of Regulation 29, the panel of selected
persons in which the appellant was included has expired and, therefore,
there is no legal right of the appellant to be enforced with by issuance
of a mandamus.
119. The facts in Purshottam (supra), as noticed, makes the position clear
that it arose from a case where he was illegally denied appointment on
account of the so-called decision of the screening committee. Once the
High Court of Bombay reversed the decision of the screening committee,
his right to be appointed could not have been taken away on the ground
either of expiry of the panel under Regulation 29 or that of non -
availability of post, some other person having been appointed.
CONCLUSION
120. We, therefore, reach the irresistible conclusion that the impugned
judgments and orders of the Division Bench of the High Court, upholding
those of the Single Judges under challenge, are liable to be set aside for
the reasons assigned; also, the judgments and orders of the Single
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Judges being wholly incorrect, the same too cannot sustain. The same
are set aside.
121. Our sympathies are with the writ petitioners but the law being what it
is, we hold that they may not be appointed on any of the posts for which
they competed.
122. The appeals are, accordingly, allowed. No costs.
EPILOGUE
123. From our combined experience on the Bench, we may safely observe
that a substantial number of service-related disputes pending across the
country are aggravated by protracted and recurring litigation, resulting
in a state of perpetual flux for many candidates across the country. The
judiciary would do well to remain circumspect of these practical realities,
and interpret service rules in a manner that furthers the very object of
a selection process, that is, the selection of the most suitable candidates
from suitable candidates for appointment in a timely manner.
………… ……………………………J .
(DIPANKAR DATTA)
…………………… ……….…………J .
(AUGUSTINE GEORGE MASIH)
New Delhi;
January 15, 2026.
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