REPORTABLE

IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 11360­11363 OF 2018 (Arising out of  SLP (Civil) Nos.29668­29671/2017

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

Versus

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

WITH

CIVIL APPEAL NO. 11364 OF 2018 (@SLP (C) No. 6165 OF 2018)

J U D G M E N T

Deepak Gupta, J.

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

short the  SECR) issued  an  advertisement  on  15.12.2010

inviting  applications for filling  up  5798 posts in the  pay

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

Raipur, Bilaspur and Nagpur divisions and workshops.  The

claim of the original writ petitioners who filed applications

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before the Central Administrative Tribunal (for short CAT)

was that as per the existing instructions  the select list was

prepared with 20% extra candidates.   Therefore, the result

of 6995 candidates was declared who were successful.  The

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

not make the appointments from these 20% extra

candidates though 624 posts remained unfilled in the

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

category of extra candidates filed applications  before the

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

vacancies from this list of 20% candidates.  This application

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

appellants was also rejected.  Hence these appeals.

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

to refer to the instructions relied upon by the appellants.

The relevant portion of the instruction reads as follows :­

“…….. 3. The issue has been examined and it has now been decided by the  Board that the  number of candidates called for document verification shall be 20% over and above the number of vacancies.   4. This shall, however, be done with the following proviso. (i) It has to be brought out clearly in the Call Letter to

the candidate that the purpose of calling 20%

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candidates over and above the number of vacancies at the time of document verification is primarily to avoid shortfall  in the panel and that merely calling a candidate for document verification does not, in any way, entitle him/her to an appointment in the railways.

(ii) Even where the number of candidates available after document  verification exceeds the number of vacancies, the panel finalized  by RRC (Railway Recruitment Cell) shall be equal to the number of   

vacancies only.  In case, the Railway administration after giving  stipulated  joining time  to the  selected candidates, certifies that  certain number of candidates have not turned up within the  specific period, another panel equal to the number of candidates  

finally not turning up for taking appointment will be supplied by  RRC.   Before calling for replacement in ­lieu of the candidates  finally  not turning up  for taking appointment CPO shall personally  satisfy himself that the procedure for cancellation of the offer of   

appointment to the originally empanelled candidates has been  strictly followed.   Under no circumstances, the number of  candidates covered in the original as well as replacement panels  shall exceed the number of vacancies indented by the railway; and  (iii) Replacement panels shall include only such number of reserved /  un­reserved candidates as have not turned up as per original  panel. …….”

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

apparent that the stand taken by the SECR before the

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

extra candidates is to ensure that in the eventuality of some

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

for document verification or being declared unfit in medical

examination the unfilled posts can be filled from the

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

purpose of calling 20% candidates was to primarily avoid

shortfall in the vacancies filled.  It was also submitted that

merely calling the candidate for document verification does

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

It was further submitted that after 10.01.2014 the system of

maintaining replacement panels has been discontinued.

According to the Tribunal the appellants had no right to be

appointed.

5. Aggrieved, the appellants approached the High Court

of Chhattisgarh in which they also took another plea that

persons  from the 20% extra replacement panel  had been

offered appointment by the Railways in many other zones

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

Nagpur that this was not done.   The  writ petition  was

dismissed holding that the appellants herein had no right

and also that merely because some appointments have been

made in other zones from the replacement panel, it would

not create any right in the appellants.

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

SECR could have ignored the 20% extra panel despite the

letter dated 02.07.2008 without giving any cogent reason for

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

give any vested right to the selected candidate to be

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

are  lying vacant  and selection process has been  followed

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

not resort to and appoint the selected candidates, even if

they are from the replacement panel.   Just because

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

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

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

must give reasons and satisfy the court that it had some

grounds for not appointing the candidates who found place

in the replacement  panel.   In this  behalf  we  may  make

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

Union of India (UOI)1, wherein it was held as follows:­  

10.   ……………………..

1 (1995) Suppl.2 SCC 230

5

       .……………………. It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to  Mr  Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government’s approach in this case was wholly unjustified.”

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

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

employer invites applications for filling up a large number of

posts, a large number of unemployed youth apply for the

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

application fees.  Thereafter, they spend time to prepare for

the examination.   They spend time and money to travel to

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

written test they  have to again travel to appear for the

interview and  medical examination etc.   Those  who are

6

successful and  declared to  be  passed  have  a reasonable

expectation that they will be appointed.   No doubt, as

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

State must give some justifiable,  non­arbitrary reason for

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

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

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

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

the  posts.   The courts  would  normally  not question the

justification but  the justification must be reasonable  and

should not be an arbitrary, capricious or whimsical exercise

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

principles that we need to examine the contentions of the

SECR.

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

before calling for replacement candidates the CPO was to

satisfy  himself that the  procedure for cancellation  of the

order of appointment of the original empanelled candidates

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

not done the appellants could not be appointed.   This

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argument  holds  no  merit.  There is  no indication  in  the

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

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

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

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

that after the selection process in question 2 more selection

processes  were started in 2012 and 2013.   Resultantly,

three recruitment cycles  were running concurrently and,

therefore, the vacancies were  filled up  in  the  subsequent

selections.   This argument deserves to be rejected since it

was not even raised before the Tribunal.  Furthermore, the

rights of the appellants who had appeared in the selection

pursuant to the  notification  of  2010  could  not  be taken

away by the selection processes started much later.   They

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

SECR.

10. The  fact  that three simultaneous selection processes

were undertaken, itself  proves that the Respondent No. 1

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

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

8

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

vacant posts.

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

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

was published for  March 2014, validity of the list has

expired in  March 2016.   This submission is only to be

rejected.   The appellants herein who approached the CAT

and  the  High Court  with  promptitude  cannot  suffer  only

because the matter was pending in Court.

12. Another submission raised on behalf  of the SECR is

that the appellants have obtained lower marks than the cut­

offs prescribed in the selection processes held in the year

2012 and 2013.   This amounts to comparing apples to

oranges.   Every selection process has a different

examination with different level of assessment.   By no

stretch of imagination can comparison be made between the

three different selection processes.   

13. Another argument raised is that recruitment policy is

an executive decision and the courts should not question

the efficacy of such policy.   Neither the appellants nor this

9

Court is questioning the efficacy of the policy contained in

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

ensure implementation of the policy by the Respondent No.

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

justify its action of not calling for candidates from the

replacement list of extra 20% candidates.

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

judgment of the High Court and CAT, Jabalpur Bench are

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

letter dated  02.07.2008.  While allowing the appeals  we

issue the following directions:­

(i) The benefit  of this judgment shall  only  be available to those appellants who had approached the CAT;

(ii) The appellants shall not be entitled to any back wages;

(iii) The appellants shall, for the purpose of seniority and fixation of pay  be  placed immediately above the first selected candidates of the selection process which commenced in the year 2012 and, immediately below the candidates of the selection list of 2010 in order of seniority;

(iv) The appellants shall be entitled to notional benefits from the  date  of  such deemed appointment only for the purposes of fixation of pay and seniority.

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

judgment and offer appointment to the eligible appellants

within a period of 3 months from today.

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

in the aforesaid terms.

………………………..J. (KURIAN JOSEPH)

………………………..J. (DEEPAK GUPTA)

New Delhi November 27, 2018

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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.  11360-11363 OF 2018 (Arising out of S.L.P (C) NOS.  29668-29671 OF 2017)

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

          Versus

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

WITH

C.A.NO. 11364 of 2018 (Arising out of S.L.P (C) No. 6165 of 2018)

J U D G M E N T

Hemant Gupta, J.

I  have gone through the Judgment authored by my

learned brother Justice Deepak Gupta. Respectfully, I am

not able to agree with the views expressed therein.  My

views are given hereunder:  

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2. The appellants are aspirants for appointment to the

Group-D posts for which an advertisement was issued by

the South East Central Railways for 5540 General category

posts  on  15.12.2010.  The  advertisement  contemplated

that 20% of the candidates would be called for documents

verification  as  the  extra  candidates  in  terms  of  the

instructions issued by the Railway Board on 02.07.2008

for placing the candidates in the extra list. The relevant

conditions  contained  in  the  aforesaid  circular  read  as

under:  

“3. The issue has been examined and it has now been decided by the Board that the number  of  candidates  called  for  document verification shall be 20% over and above the number of vacancies.

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

(i) It has to be brought out clearly in the Call Letter to the candidate that the purpose of  calling  20% candidates  over  and  above the  number  of  vacancies  at  the  time  of document  verification  is  primarily  to  avoid shortfall in the panel and that merely calling a candidate  for  document  verification  does not,  in  any  way,  entitle  him/her  to  an appointment in the railways.

(ii) Even  where  the  number  of candidates  available  after  document verification  exceeds  the  number  of vacancies,  the  panel  finalized  by  RRC (Railway Recruitment Cell) shall be equal to number  of  vacancies  only.  In  case,  the Railway Administration after giving stipulated

13

joining  time  to  the  selected  candidates, certifies  that  certain  number  of  candidates have  not  turned  up  within  the  specified period, another panel equal to the number of candidates finally  not  turning up for  taking appointment will be supplied by RRC. Before calling  for  replacement  in-lieu  of  the candidates finally  not  turning up for  taking appointment  CPO  shall  personally  satisfy himself that the procedure for cancellation of the  offer  of  appointment  to  the  originally empanelled  candidates  has  been  strictly followed.  Under  no  circumstances,  the number of candidates covered in the original as well  as replacement panels shall  exceed the number of the vacancies indented by the railway; and

(iii) Replacement  panels  shall  include only  such  number  of  reserved/un-reserved candidates  as  have  not  turned  up  as  per original panel.”

(emphasis supplied)

3. The process of appointment particularly in respect of

extra  candidates  has been revised when Railway  Board

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

said  circular  has  done  away  with  the  procedure  of

replacing  candidates  as  contemplated  in  the  earlier

circular dated 02.07.2008.

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

many as 509775 applications were received in response to

the advertisement issued on 15.12.2010 and out of which

162229  candidates  appeared  for  the  written  test.  After

14

qualifying the written test, 10380 general candidates were

called for physical efficiency test. Since the appellants are

general  category  candidates,  number  of  the  candidates

from the other categories called for physical efficiency test

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

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

candidates  qualified  in  the  physical  efficiency  test.  The

percentage  of  cut  off  marks  obtained  for  document

verification in respect of the general category is 40.98%.

The  appointments  against  the  posts  advertised  were

made on 11.3.2013; 9.7.2013 and in March 2014.

5. The appellants, who were not appointed against the

Group-D  posts  against  the  aforesaid  advertisement

process, filed Original Applications under section 19 of the

Administrative  Tribunal  Act,  1985  before  the  Central

Administrative Tribunal, Jabalpur in the year 2014.

6. Such  nine  connected  Original  applications  were

dismissed by the Tribunal on 13.02.2015 inter-alia, holding

as under:

“The right of candidates in 20% extra list begins  only  after  a  demand  is  made  for replacement  panel  to  Railway  Recruitment

15

Cell after duly following aforesaid procedure. The procedure for  working out  requirement of replacement panel is not part of either the employment  notification  or  selection procedure.  The  right  of  applicants  for consideration  starts  only  after  certain appointment orders of originally empanelled candidates  are  cancelled  and  thereafter  a demand  is  raised  for  replacement  panel. Since no demand has been made in view of the procedure specified in notification dated 2.07.2008  (Annexure  R-4)  no  right  for consideration  of  the  applicants  has  either acquiesced or been infringed.”

7. The  Writ  Petition  filed  by  the  appellants  before

Chhattisgarh  High  Court  remained  unsuccessful  vide

judgment dated 05.08.2015. The Court held as under:

“The only question for our consideration is that if the appellants were not in the original list  of  selected  candidates  on  higher  merit and  were  to  be  considered  against  non- joining vacancies or medical disqualification of  selected  candidates,  then the  procedure prescribed  in  the  Railway  Board’s  letter 02.07.2008 was required to  be followed by preparation  of  a  replacement  panel.  The Tribunal has arrived at a finding of fact that no  process  for  initiation  of  the  procedure under  letter  dated  02.07.2008  was  ever commenced  by  the  Respondents  to  fill  up non-joining vacancies from any replacement panel.  A candidate outside and beyond the merit list, has no vested legal right to such appointment  as  a  matter  of  right  because vacancies  may  exist.  We  do  not  find  any reason to differ with the conclusions arrived at by the Tribunal”.

16

8. Before this Court, learned counsel for the appellants

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

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

though  the  appellants  have  no  vested  right  to  seek

appointment but the respondents cannot act in arbitrary

manner to deny the benefit of right of appointment as the

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

manner.  Therefore,  the  denial  of  appointment  to  the

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

5540 posts in the general category as many as 624 posts

have  remained  unfilled.  Therefore,  such  posts  could  be

very  well  filled  up  by  the  candidates  who  are  in  the

category  of  replacement  candidates  (extra  list)  such as

the appellants.  

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

two separate appointment processes were also initiated,

one on 25.08.2012 to  fill  up 2017 posts  of  the general

category  and  another  on  14.12.2013  to  fill  up  1195

general  category posts.  In  the said selection processes,

2839 candidates have been empanelled as against 3212

posts advertised. Such candidates have already joined. It

17

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

respect of which appellants were the candidates and the

two  other  recruitment  processes  were  almost  running

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

affidavit as under:  

“iii. In  the  instant  case  Replacement Panels were not issued primarily as there was no demand for issue of Replacement Panels from  the  Divisions/Units.  While  the Recruitment  process  to  the  Employment Notification  No.  SECR/02/2010  was underway,  with  the  approval  of  Railway Board,  two  more  Notifications  under  No. SECR/03/2012  dated  25.08.2012  for  2215 (198 Physically Handicapped + 2017 Non-PH) posts  and  SECR/04/2013  dated  14.12.2013 for 1206 (11 Physically Handicapped + 1195 Non-PH) posts were issue.

iv. Against  the  above  two  Employment Notifications,  SECR/03/2012  dated 25.08.2012  and  SECR/04/2013  dated 14.12.2013,  1977  and  862  Non-PH candidates  have  been  empanelled respectively. As such a total of 2839 Non-PH candidates  have  been  empanelled  against two  subsequent  cycles  of  Employment Notifications.

v.    Regarding the claim of  the appellants and  similarly  placed  candidates  (who  are candidates  falling  in  20%  extra  candidates zone  against  employment  Notification  No. SECR/02/2010)  for  issue  of  replacement panels  against  around  600  candidates  who did not join, it is submitted that the effect of non-joining  of  600 odd candidates  was  not felt since in a short time margin 2839 Non-PH

18

candidates were empanelled and the panels were supplemented to the Divisions/Units.

vii. Hence it goes without saying that the 2839  empanelled  candidates  against  two subsequent  employment  notifications SECR/03/2012  and  SECR/04/2013,  are  far superior  in  merit  as  compared  to  the appellants who are candidates falling in 20% extra  zone against  employment  notification No. SECR/02/2010.

viii. As mentioned above two more cycles of recruitments were going on parallel to the Employment  Notification No.  SECR/02/2010, the necessity of replacement panels was not felt and not asked for as such.”

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

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

for document verification over and above the number of

posts advertised. The circular dated 02.07.2008 is to the

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

shortfall in the panel and that merely calling a candidate

for  document  verification  does  not,  in  any  way,  entitle

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

contemplated that  replacement  panel  shall  include only

such number of reserved / unreserved candidates as have

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

extra candidates were called to substitute the candidates

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who do not report within the joining time granted to the

selected candidates. Such candidates at best can be said

to be the candidates in the waiting list of the candidates

to be called for appointment if the selected candidates do

not join for one or the other reason.  

11. The  next  question  is  as  to  whether  a  candidate

acquires any right to appointment being in the merit list.

Such  question  has  been  examined  in  number  of

judgments time and again by this Court.  In a judgment

reported  as  State  of  Haryana  v.  Subash  Chander

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

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

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

“ 7. In the present case it appears that about 40 candidates  had passed the examination with the minimum score of 45%. Their names were published in  the  Government  Gazette as required by Rule 10(1) already referred to. It is not disputed that the mere entry in this list of the name of candidate does not give him  the  right  to  be  appointed. The advertisement that there are 15 vacancies to be filled does not also give him a right to be appointed.  It  may  happen  that  the Government  for  financial  or  other administrative  reasons  may  not  fill  up  any vacancies.  In  such  a  case  the  candidates,

20

even the first in the list, will not have a right to be appointed. The list is merely to help the State  Government  in  making  the appointments  showing  which  candidates have the minimum qualifications  under  the Rules.  The  stage  for  selection  for appointment comes thereafter, and it is not disputed that under the Constitution it is the State Government alone which can make the appointments. …..”

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

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

process  for  selection  and  selection  for  the  purpose  of

recruitment against anticipated vacancies does not create

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

by a mandamus. The Court held as under: -

“ 12. …... This, however, does not clothe the appellants with any such right. They cannot claim as of right that the Government must accept  the  recommendation  of  the Commission.  If,  however,  the vacancy is  to be  filled  up,  the  Government  has  to  make appointment strictly adhering to the order of merit as recommended by the Public Service Commission.  It  cannot  disturb  the  order  of merit according to its own sweet will except for other good reasons viz.  bad conduct  or character.  The  Government  also  cannot appoint  a  person  whose  name  does  not appear  in  the  list.  But  it  is  open  to  the Government  to  decide  how  many appointments will be made. The process for

21

selection  and  selection  for  the  purpose  of recruitment  against  anticipated  vacancies does not  create a right  to be appointed to the  post  which  can  be  enforced  by  a mandamus. We are supported in our view by the two earlier decisions of this Court in A.N. D'Silva v. Union of  India  AIR 1962 SC 1130 and State  of  Haryana v. Subash  Chander Marwaha (1974) 3 SCC 220. The contention of  Mr  Anthony  to  the  contrary  cannot  be accepted.”  

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

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

notification  for  an  appointment  merely  amounts  to  an

invitation to qualified candidates to apply for recruitment

and on their selection, they do not acquire any right to the

post. It was held as under:

“7.    It  is  not  correct  to  say  that  if  a number  of  vacancies  are  notified  for appointment  and  adequate  number  of candidates  are  found  fit,  the  successful candidates  acquire  an  indefeasible  right  to be  appointed  which  cannot  be  legitimately denied.  Ordinarily  the  notification  merely amounts  to  an  invitation  to  qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty  to  fill  up  all  or  any  of  the  vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to  be  taken  bona  fide  for  appropriate

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reasons. And if the vacancies or any of them are filled up, the State is  bound to respect the comparative merit of the candidates, as reflected  at  the  recruitment  test,  and  no discrimination can be permitted. This correct position  has  been  consistently  followed  by this Court, and we do not find any discordant note  in  the  decisions  in State  of Haryana v. Subash Chander Marwaha (1974) 3  SCC  220, Neelima  Shangla  v.  State  of Haryana  (1986)  4  SCC  268,  or Jatindra Kumar v. State of Punjab (1985)1 SCC 122“.

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

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

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

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

a  writ  in  the  nature  of  mandamus  unless  there  is

discrimination or arbitrariness in regard to the filling up of

the vacancies. The Court held as under:

“12. There is  another aspect  of  the matter which cannot also be lost sight of. A person does  not  acquire  a  legal  right  to  be appointed only because his name appears in the  select  list.  (See Pitta  Naveen Kumar v. Raja  Narasaiah  Zangiti [(2006)  10 SCC 261.  The State  as  an  employer  has  a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to  the  filling  up  of  the  vacancies  or  an arbitrariness  is  committed,  the  candidate concerned  will  have  no  legal  right  for obtaining  a  writ  of  or  in  the  nature  of mandamus.  (See Batiarani  Gramiya

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Bank v. Pallab  Kumar (2004)  9  SCC  100. In Shankarsan  Dash v. Union  of  India (1991) 3 SCC 47 a Constitution Bench of this Court held: (SCC pp. 50-51, para 7)

“7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found  fit,  the  successful  candidates acquire  an  indefeasible  right  to  be appointed  which  cannot  be  legitimately denied. Ordinarily the notification merely amounts  to  an  invitation  to  qualified candidates  to  apply  for  recruitment  and on their selection they do not acquire any right  to  the  post.  Unless  the  relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide  for  appropriate  reasons.  And  if  the vacancies or any of them are filled up, the State is bound to respect the comparative merit  of  the  candidates,  as  reflected  at the  recruitment  test,  and  no discrimination can be permitted.”

* * * 14. In Pitta  Naveen Kumar v. Raja Narasaiah Zangiti [(2006) 10 SCC 261, this Court held: (SCC p. 273, para 32)

“32. … A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India has  only  a  right  to  be  considered therefor. Consideration of the case of an individual  candidate  although  ordinarily is required to be made in terms of the

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extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the  candidates  concerned  and  not otherwise.”

15. In  another  judgment  reported  in  Kulwinder  Pal

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

held  that  the  name of  a  candidate  may  appear  in  the

merit  list  but  he  has  no  indefeasible  right  to  seek  an

appointment. It was held as under:

“10. It  is  fairly  well  settled  that  merely because the name of a candidate finds place in  the  select  list,  it  would  not  give  him indefeasible right to get an appointment as well. The name of a candidate may appear in the merit list but he has no indefeasible right to an appointment vide Food Corporation of India v. Bhanu  Lodh (2005)  3  SCC  618, All India SC & ST Employees' Assn. v. A. Arthur Jeen (2001)  6  SCC  380  and UPSC v. Gaurav Dwivedi (1999) 5 SCC 180. 11. This  Court  again  in State  of Orissa v. Rajkishore Nanda (2010) 6 SCC 777, held as under: (SCC p. 783, paras 14 & 16)

“14. A person whose name appears in the select  list  does  not  acquire  any indefeasible  right  of  appointment. Empanelment  at  best  is  a  condition  of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.

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*           *            * 16. A  select  list  cannot  be  treated  as  a reservoir  for  the  purpose  of appointments, that vacancy can be filled up taking the names from that list as and when it is so required.”

12. In Manoj  Manu v. Union  of  India  (2013) 12 SCC 171, it  was held that (SCC p. 176, para  10)  merely  because  the  name  of  a candidate  finds  place  in  the  select  list,  it would not give the candidate an indefeasible right  to  get  an  appointment  as  well.  It  is always open to the Government not to fill up the vacancies, however such decision should not  be arbitrary or unreasonable.  Once the decision is found to be based on some valid reason,  the  Court  would  not  issue  any mandamus to the Government to fill up the vacancies.  As  noticed  earlier,  because twenty-two  other  candidates  were  declared successful by the Supreme Court pertaining to  the  selection  of  the  years  1998,  1999, 2000  and  2001  as  Civil  Judges  (Junior Division), they were to be accommodated, as rightly  resolved  by  the  Administrative Committee in  the  meeting  dated 6-7-2011. The  three  resultant  vacancies  of  the  year 2007-2008 stood consumed with the joining of  the  said  seventeen  candidates  and  the same could not be filled up from the select list  of  that  year.  The  decision  of  the Administrative Committee observing that the three resultant vacancies stood consumed is based on factual situation arising there and cannot be said to be arbitrary.”

16. The stand of  the Railways  before  the  Tribunal  was

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

eventualities such as the unfitness of the candidates at

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the stage of medical examination or not turning up of the

candidates for document verification etc. It is also averred

that in spite of vacancies remaining unfilled due to non-

joining of selected candidates, no appointment from the

extra  candidates  can  be  claimed  in  view  of  the

instructions of the Railway Board. The stand of Railways in

reply  before  the  Tribunal  was  not  that  there  was

simultaneous selection process for Group-D posts and for

which  2839  candidates  were  appointed  but  the  fact

remains that such an averment has been made before this

Court and such an assertion has not been controverted.

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

appointment  of  members  of  the  Income  Tax  Appellate

Tribunal by a Selection Committee chaired by a Judge of

this Court. The Central Government has not passed any

order  on  the  recommendation  of  such  Selection

Committee.  The  said  Judgment  has  been  explained  in

another  judgment  reported  as  Union  of  India  v.  Kali

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

“20. The  respondents  have  relied  on  the judgments of this Court in R.S. Mittal v. Union of India 1995 Supp (2) SCC 230 in support of

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their  contentions.  In  our  view,  the  said authority hardly advances their case. In the first place, all that the authority says is that where a Selection Board headed by a sitting Judge  of  the  Supreme  Court  had recommended  certain  candidates  for appointment as members of ITAT, it was not open to the Government of India to sit on the said recommendation without taking action. That was not a case where a decision taken not to appoint a candidate for good reason was  concurred  in  by  the  Chief  Justice  of India.”

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

called  in  for  the  verification  of  documents  as  extra

candidates to replace the candidates selected who do not

join for  one or  the other  reason.  Such candidates  were

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

meritorious selected candidates do not join.  In terms of

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

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

appellants  do  not  possess  indefeasible  right  of

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

in  merit  has  been appointed or  the appointments  have

been made by pick  and choose method ignoring merit.

The reason given by the Railways in the counter affidavit

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

pursuance of an advertisement in question as there was

two  simultaneous  selection  processes  in  which  2839

candidates were appointed. Such reason cannot be said to

be  wholly  arbitrary  which  warrant  a  mandate  to  the

respondents  to  appoint  the  appellants  who  are  not  in

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

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

requirement to fill up 624 vacant posts was not felt cannot

be said to be arbitrary warranting a mandamus to appoint

the appellants.  The State cannot be directed to appoint

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

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

appropriate  reasons  and  is  neither  arbitrary  nor

discriminatory.  

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

this Court is not to substitute the decision of the Railways

and  to  direct  candidates  in  the  waiting  list  to  be

appointed.  In  three  Judge  Bench  judgment  reported  as

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

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

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

be no occasion to maintain a writ petition for enforcement

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

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

the Constitution, there is self-recognised limit to exercise

such power. The Court held as under: -

“15. In this matter, the approach adopted by the Jharkhand High Court commends itself to us. The Jharkhand High Court approached the matter on the principle that judicial review is not available in such a matter. The Jharkhand High Court also rightly pointed out that mere inclusion  of  a  candidate's  name  in  the selection list gave him no right, and if there was no right, there could be no occasion to maintain a writ petition for enforcement of a non-existing right.

* * * 17. In K. Ashok Reddy v. Govt. of India (1994) 2 SCC 303, this Court indicated that however wide the power of judicial review under Article 226 or 32 there is a recognised limit,  albeit self-recognised, to the exercise of such power. This Court reiterated a passage from Craig's Administrative  Law (2nd  Edn.,  p.  291),  vide SCC p. 315, para 21, as under:

“The  traditional  position  was  that  the courts  would  control  the  existence  and extent of prerogative power, but not the manner  of  exercise  thereof.  …  The traditional  position  has  however  now been  modified  by  the  decision  in GCHQ

30

case [Council  of  Civil  Service Unions v. Minister  for  the  Civil  Service, 1985  AC  374  :  (1984)  3  All  ER  935  : (1984) 3 WLR 1174 (HL)] . Their Lordships emphasised  that  the  reviewability  of discretionary power should be dependent upon the subject-matter thereof, and not whether  its  source  was  statute  or  the prerogative.  Certain  exercises  of prerogative power would, because of their subject-matter,  be  less  justiciable,  with Lord Roskill compiling the broadest list of such forbidden territory….”

The observations of Lord Roskill, referred to above,  are  from Council  of  Civil  Service Unions v. Minister  for  the  Civil  Service 1985 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174 (HL)] (GCHQ case) as under: (All ER p. 956d-e)

“But  I  do  not  think  that  that  right  of challenge  can  be  unqualified.  It  must,  I think,  depend  on  the  subject-matter  of the prerogative power which is exercised. Many  examples  were  given  during  the argument of prerogative powers which as at  present  advised  I  do  not  think  could properly be made the subject of  judicial review. Prerogative powers such as those relating  to  the  making  of  treaties,  the defence of the realm, the prerogative of mercy,  the  grant  of  honours,  the dissolution  of  Parliament  and  the appointment  of  ministers  as  well  as others  are  not,  I  think,  susceptible  to judicial  review because their  nature and subject-matter  is  such  as  not  to  be amenable to the judicial process.”

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18. Finally,  this  Court  emphasised  judicial restraint  by  citing with  approval  a  passage in de  Smith's  Judicial  Review  of Administrative Action (vide SCC p. 316, para 23) as under:

“Judicial  self-restraint  was  still  more marked  in  cases  where  attempts  were made  to  impugn  the  exercise  of discretionary powers by alleging abuse of the  discretion  itself  rather  than alleging non-existence  of  the  state  of  affairs  on which  the  validity  of  its  exercise  was predicated.  Quite  properly,  the  courts were slow to read implied limitations into grants of wide discretionary powers which might have to be exercised on the basis of  broad  considerations  of  national policy.”

Based  on  this  reasoning,  it  was acknowledged that the transfer of a Judge of the  High  Court  based  on  the recommendation of the Chief Justice of India would  be  immune  from  judicial  review  as there  is  “an  inbuilt  check  against arbitrariness and bias indicating absence of need  for  judicial  review  on  those  grounds. This  is  how  the  area  of  justiciability  is reduced…. [Ibid., para 24] ” 19. We,  respectfully,  reiterate  these observations, and expect them to be kept in mind by all  courts  in  this  country  invested with the power of judicial review.”

20. Further  in  the  written  submissions  submitted  on

behalf  of  the  respondents,  reliance  is  placed  on  the

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circular dated 18.07.2005 to say that the currency of the

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

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

General  Manager by one year  in  case of  administrative

exigencies.

21. Somewhat  similar  question  was  considered  in  a

recent Judgment dated 22nd November, 2018  of this Court

in Civil Appeal No. 11149 of 2018 entitled Uttar Pradesh

Public  Service  Commission  v.  Surender  Kumar  &

Ors., whereby the Government Order contemplated that

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

deciding the said aspect, the Court held as under:

“12.  Having  heard  the  learned  counsels  on both  sides,  we  have  perused  the  order  dated 18.05.2018 passed by the High Court and other material  placed  on  record.  For  the  purpose  of operating wait-list, Government of Uttar Pradesh has issued instructions from time to time. It  is clear from the various Government Orders that wait-list period is valid only for a period of one year.  Though  requisition  is  made  for  making selection for 178 number of posts, but appellant Commission,  after  delcaring  results  of  the examination,  has  made  initial  recommendation for substantive number of posts, i.e., 156 posts vide letter dated 12.08.2010. It appears that the said list is prepared by including candidates who have  submitted  all  the  requisite  documents within  the  period  prescribed.  Further recommendations were also made, but there is no reason for not computing the period of one year from 12.08.2010.  When recommendations

33

were made for substantive number of posts on 12.08.2010,  we are of  the view that  period of one  year  for  operating  wait-list  is  to  be computed from 12.08.2010 but not from the last recommendation made for one post, vide letter dated 28.08.2012. The reason for restricting 156 names in the initial recommendation vide letter dated 12.08.2010, is explained in paragraph 11 of  the  counter  affidavit  filed  before  the  High Court”.

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

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

order to appoint the persons from such select list prepared

wayback  in  the  year  2014  in  pursuance  to  the

advertisement issued on 15.12.2010. Such panel cannot

be a perennial source of appointment.

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

find any reason to interfere in the decision-making process

of  the  Railways,  so  as  not  to  appoint  the  appellants

against Group D posts advertised on 15.12.2010.

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

passed by the Tribunal and the High Court. The appeals

are accordingly dismissed. No Costs.

.............................J.        (HEMANT GUPTA)

New Delhi,  November 27, 2018.

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