Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 2808 of 2008

State of Orissa & Anr. ..Appellants

Versus

Rajkishore Nanda & Ors. ..Respondents

J U D G M E N T

Dr. B. S. CHAUHAN, J.

1.The present appeal has been preferred against the Judgment

and Order of the Orissa High Court dated 26.10.2005 passed in OJC

Nos. 10582, 11262, 11268, 11269, 11271, 11273, 11275, 11279,

11280, 11324 & 11326 of 2000, by which the High Court dismissed

the Writ Petition filed by the State of Orissa/Appellant against the

Judgment and order of the Orissa Administrative Tribunal, Cuttack

(hereinafter called as, “the Tribunal”) dated 7.4.2000 issuing direction

to the appellant to appoint all the persons whose names appeared in

the panel for the selection on the post of Junior Clerk held in 1995.

2.Facts and circumstances giving rise to the present appeal are

that in order to fill up 15 posts of Junior Clerks in District Sonepur,

applications were invited by an advertisement dated 25.06.1995. The

advertisement made it clear that number of vacancies could be

increased. The respondents applied in pursuance of the said

advertisement along with large number of persons and written

examination was held in accordance with the Orissa Ministerial

Service (Method of Recruitment to Posts of Junior Clerks in the

District Offices) Rules, 1985 (hereinafter called as, “Rules, 1985”).

Before the selection process could complete, the number of

vacancies were increased from 15 to 33 and as per the requirement

of Rules, 1985, a merit list of 66 candidates was published on

6.11.1995. The appointments were made on the said posts. The

respondents, whose names appeared in the merit list and could not

be offered appointment, being much below in the merit list, filed

applications before the Tribunal praying for a direction to the State to

offer them appointments. The Tribunal, vide its Judgment and Order

dated 7.4.2000, came to the conclusion that appointments were to be

offered to all the candidates till the entire select list stood exhausted.

2

Therefore, the Tribunal directed to offer appointment to all left over

candidates in the select list of 1995.

3.Being aggrieved, the State preferred the writ petition against

the said common Judgment and order of the Tribunal in the High

Court of Orissa and the High Court, vide Judgment and order dated

26.10.2005, modified the order of the Tribunal issuing direction to the

appellants to offer appointment to those persons who had

approached the Tribunal. Hence, this appeal.

4.Sh. Janaranjan Das, learned counsel appearing for the

appellant-State, has submitted that number of vacancies cannot be

filed up over and above the number of vacancies advertised. Once

the advertised vacancies are filled up, the selection process stands

exhausted and the selection process comes to an end. Where the

Rules provide to determine the vacancy yearly, life of select list

cannot be more than one year and once the life of the select list

expires, no appointment can be offered from the panel so prepared.

The Tribunal and the High Court committed an error issuing

directions to appoint the candidates from the unexhausted part of the

3

select list, which is not permissible in law. Thus, the appeal deserves

to be allowed.

5.Per contra, Sh. H.P. Sahu and Sh. J.P. Mishra, learned counsel

appearing for the respondents vehemently opposed the appeal

contending that if the selection is not held in subsequent years,

candidates whose names appear in the panel have to be offered

appointments. Therefore, no interference is required with the

impugned Judgment and order of the High Court. The appeal lacks

merit and thus, liable to be dismissed.

6.We have considered the rival submissions of the learned

counsel for the parties and perused the record.

7.Relevant Rules from Rules, 1985, which are necessary to be

considered for deciding the appeal, read as under :-

“Rule 2Definitions – In these rules unless

the context otherwise requires -

………………. “Year” means a calendar year.

Rule 3 Recruitment

Recruitment to the posts shall be made through

direct recruitment by means of a competitive

4

examination to be held ordinarily once in every

year.

Rule 6 Notification of vacancies

On the receipt of the requisite information from

the District Officers the Chairman of the Board

shall notify the total number of vacancies to the

local employment exchange indicating therein

the number of reserved vacancies for the

purpose of conducting the competitive

examination.

Rule 11 (1) Allotment of successful

candidates

The Chairman of the Board shall ensure

completion of evaluation of answer papers and

preparation of the list of successful candidates

who have qualified by such standards as will be

decided by him ordinarily within two months from

the date of examination. The candidates’ names

shall be arranged in order of merit on the basis

of marks secured by them in the examination

conducted by the Board. This list of successful

candidates drawn in order of merit shall not

ordinarily exceed double the number of

vacancies as determined under Rule 6.

Rule 12The list prepared under Sub-rule (1)

of Rule 11 shall remain valid for a period of one

year from the date of publication of the same or

till drawal of the next year’s list, whichever is

earlier.

8.If the aforesaid relevant Rules are read together, the cumulative

effect thereof comes to that after determining the number of

5

vacancies taking into consideration the expected vacancies, the

same shall stand notified to local Employment Exchange and

advertise the same through other means. The select list, after

holding the test as required under the Rules, 1985, shall be prepared

and published, which shall contain the names of candidates, double

the number of vacancies so advertised/determined.

9.Rule 14 merely enables the State Government to relax the

eligibility conditions by recording reasons in respect of any class or

categories of persons in public interest.

10.It is a settled legal proposition that vacancies cannot be filled up

over and above the number of vacancies advertised as "the

recruitment of the candidates in excess of the notified vacancies is a

denial and deprivation of the constitutional right under Article 14 read

with Article 16(1) of the Constitution", of those persons who acquired

eligibility for the post in question in accordance with the statutory

rules subsequent to the date of notification of vacancies. Filling up the

vacancies over the notified vacancies is neither permissible nor

desirable, for the reason, that it amounts to "improper exercise of

6

power and only in a rare and exceptional circumstance and in

emergent situation, such a rule can be deviated and such a deviation

is permissible only after adopting policy decision based on some

rational", otherwise the exercise would be arbitrary. Filling up of

vacancies over the notified vacancies amounts to filling up of future

vacancies and thus, not permissible in law. (Vide State of Bihar &

Ors. Vs. The Secretariat Assistant S.E. Union 1986 & Ors. AIR

1994 SC 736; Prem Singh & Ors. Vs. Haryana State Electricity

Board & Ors. (1996) 4 SCC 319; Ashok Kumar & Ors. Vs.

Chairman, Banking Service Recruitment Board & Ors. AIR 1996

SC 976; Surinder Singh & Ors. Vs. State of Punjab & Ors. AIR

1998 SC 18; and Rakhi Ray & Ors. Vs. High Court of Delhi AIR

2010 SC 932).

11.In State of Punjab v. Raghbir Chand Sharma and Ors. AIR

2001 SC 2900, this Court examined the case where only one post

was advertised and the candidate whose name appeared at Serial

No. 1 in the select list joined the post, but subsequently resigned. The

Court rejected the contention that post can be filled up offering the

7

appointment to the next candidate in the select list observing as

under:

“With the appointment of the first candidate for the only

post in respect of which the consideration came to be

made and select list prepared, the panel ceased to exist

and has outlived its utility and at any rate, no one else in

the panel can legitimately contend that he should have

been offered appointment either in the vacancy arising on

account of the subsequent resignation of the person

appointed from the panel or any other vacancies arising

subsequently.”

12.In Mukul Saikia and Ors. v. State of Assam and Ors. AIR

2009 SC 747, this Court dealt with a similar issue and held that "if the

requisition and advertisement was only for 27 posts, the State cannot

appoint more than the number of posts advertised". The Select List

"got exhausted when all the 27 posts were filled". Thereafter, the

candidates below the 27 appointed candidates have no right to claim

appointment to any vacancy in regard to which selection was not

held. The "currency of Select List had expired as soon as the number

of posts advertised are filled up, therefore, the appointments beyond

the number of posts advertised would amount to filling up future

vacancies" and said course is impermissible in law.

8

13.A person whose name appears in the select list does not

acquire any indefeasible right of appointment. Empanelment at the

best is a condition of eligibility for purpose of appointment and by

itself does not amount to selection or create a vested right to be

appointed. The vacancies have to be filled up as per the statutory

rules and in conformity with the constitutional mandate.

14.A Constitution Bench of this Court in Shankarsan Dash Vs.

Union of India, AIR 1991 SC 1612, held that appearance of the

name of a candidate in the select list does not give him a right of

appointment. Mere inclusion of candidate’s name in the select list

does not confer any right to be selected, even if some of the

vacancies remain unfilled. The candidate concerned cannot claim

that he has been given a hostile discrimination. (see also Asha Kaul

& Anr. Vs. State of J & K & Ors., (1993) 2 SCC 573; Union of India

Vs. S.S.Uppal, AIR 1996 SC 2340; Bihar Public Service

Commission Vs. State of Bihar AIR 1997 SC 2280; Simanchal

Panda Vs. State of Orissa & Ors., (2002) 2 SCC 669; Punjab

State Electricity Board & Ors. Vs. Malkiat Singh (2005) 9 SCC 22;

Union of India & Ors. Vs. Kali Dass Batish & Anr. AIR 2006 SC

9

789; Divisional Forests Officers & Ors. Vs. M. Ramalinga Reddy

AIR 2007 SC 2226; Subha B. Nair & Ors. Vs. State of Kerala &

Ors., (2008) 7 SCC 210; Mukul Saikia & Ors. Vs. State of Assam &

Ors., (2009) 1 SCC 386; and S.S. Balu & Anr. Vs. State of Kerala &

Ors., (2009) 2 SCC 479).

15.Select list cannot be treated as a reservoir for the purpose of

appointments, that vacancy can be filled up taking the names from

that list as and when it is so required.

It is the settled legal proposition that no relief can be granted to

the candidate if he approaches the Court after expiry of the Select

List. If the selection process is over, select list has expired and

appointments had been made, no relief can be granted by the Court

at a belated stage. (Vide J.Ashok Kumar Vs. State of Andhra

Pradesh & Ors., (1996) 3 SCC 225; State of Bihar & Ors. Vs. Md.

Kalimuddin & Ors., AIR 1996 SC 1145; State of U.P. & Ors. Vs.

Harish Chandra & Ors., AIR 1996 SC 2173; Sushma Suri Vs.

Government of National Capital Territory of Delhi & Anr., (1999) 1

SCC 330; State of U.P. & Ors. Vs. Ram Swarup Saroj, (2000) 3

SCC 699; K. Thulaseedharan Vs. Kerala State Public Service

10

Commission, Trivendrum & Ors., (2007) 6 SCC 190; Deepa Keyes

-Vs.- Kerala State Electricity Board & Anr., (2007) 6 SCC 194; and

Subha B. Nair & Ors. (supra).

16.The instant case is required to be examined in view of the

aforesaid settled legal proposition. The Rules, 1985 provide for

determining the number of vacancies and holding competitive

examination ordinarily once in a year. Select list prepared so also

valid for one year. In the instant case, 15 vacancies were advertised

with a clear stipulation that number of vacancies may increase. The

authorities had taken a decision to fill up 33 vacancies, thus, select

list of 66 persons was prepared. It is also evident from the record

that some more appointments had been made over and above the 33

determined vacancies. Thus, once the selection process in respect

of number of vacancies so determined came to an end, it is no more

open to offer appointment to persons from the unexhausted list. It is

exclusive prerogative of the employer/State Administration to initiate

the selection process for filling up vacancies occurred during a

particular year. There may be vacancies available but for financial

constraints, the State may not be in a position to initiate the selection

11

process for making appointments. Bonafide decision taken by the

appointing authority to leave certain vacancies unfilled, even after

preparing the select list cannot be assailed. The Courts/Tribunals

have no competence to issue direction to the State to initiate

selection process to fill up the vacancies. A candidate only has a

right to be considered for appointment, when the vacancies are

advertised and selection process commences, if he possess the

requisite eligibility.

17.As the appointments had been made as per the select list

prepared in 1995 and selection process came to an end, there was

no occasion for the Tribunal to entertain the Applications in 1997,

1998 and 1999 for the simple reason that once the number of

vacancies determined are filled, the selection process came to an

end, no further appointment could be made from 1995 panel. The

purpose of making the list of double of the vacancies determined is to

offer the appointment to the persons from the waiting list in case

persons who are offered appointment do not join. But it does not give

any vested right in favour of the candidates whose names appeared

therein.

12

18.It appears from the Judgment of the Tribunal that Rule 11(1) of

the Rules, 1985 did not provide originally to prepare the list double

the number of determined vacancies and it was only for preparing the

list containing the names equal to the number of vacancies

advertised/determined. In such a fact-situation, the select list could

have been prepared only containing 33 names i.e. equivalent to the

number of vacancies determined. In such a fact-situation, selection

process would come to an end automatically whenever 33 candidates

are appointed. However, if the appellant had prepared a list double

the number of vacancies determined, that would not create any

vested right in favour of the respondents. Thus, Tribunal committed

grave error issuing direction to offer appointments to all the left over

candidates.

19.The Tribunal held as under :-

“In this case by preparing the panel far exceeding the

number of vacancies, the Rules have been violated.

For this lapse on the part fo the Collector, the

candidates who have been subjected to a rigorous

selection at more than one stage, should not be

penalised………….The validity of the select list

has expired long since. Both learned counsel for

the applicant and the learned Government Advocate

13

concede that no further recruitment has been

conducted by the Collector, Sonepur. During this

intervening period of four years vacancies must be

arisen due to promotion, retirement, creation of new

posts etc. in different offices.” (Emphasis added)

20.The Tribunal, after recording the finding of fact that life of select

list had expired, held that as the selection could not be held in

subsequent years, thus, candidates whose names appeared in the

panel should be offered appointment by granting relaxation of Rules.

Issuance of such a direction is not permissible in law as no

appointment can be made from the panel after expiry of the life of

select list.

21.The High Court has concluded as under :-

“Here the advertisement stipulated that there were

vacancies and the vacancy position might go up.

The select list prepared admittedly contained the

names of 66 successful candidates. A cumulative

reading of Rules 6 & 11(1) of the OMS Rules, 1985

vis-à-vis the select list which contained the names of

66 successful candidates leads to an irresistible

conclusion that the number of vacancies at the time

of publication of the select list was 66. the stand of

the State before this Court is that under the

impression that the select list should contain double

the number of vacancies, a lsit of 66 candidates was

published. But then, if the said statement is

accepted, the vacancies that existed at the time of

14

publication of the select list would have been 33. But

it appears that the total number of candidates already

appointed is 40………The submission of the State

that as one year had expired from the date of

publication of the select list, the same had spent its

validity cannot also be accepted. If vacancies were

available, the candidates selected but illegally not

sponsored for appointment should not suffer.”

In view of the above, the High Court directed to offer the

appointment to the persons whose names appeared in the panel and

had approached the Tribunal.

22.The aforesaid view taken by the High Court cannot be held to

be in consonance with law. More so, if the State has committed an

error in preparing the merit list containing the names of candidates

double the number of vacancies determined, that would not mean

that select list has become immaterial and all those persons whose

names appeared in the list would be offered appointment even after

expiry of the life of select list.

23.In view of the above, the Judgment and order impugned

hereinabove cannot be sustained in the eyes of law. The appeal is

allowed. The Judgments and orders of the Tribunal dated 7.4.2000

15

and the High Court dated 26.10.2005 are set aside. No order as to

costs.

…………………………………..J.

(Dr. B.S. CHAUHAN)

…………………………………..J.

(SWATANTER KUMAR)

New Delhi

June 3, 2010

16