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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   1310  OF 2013 (Arising out of S.L.P. (C) No.28824 of 2011)

Vijoy Kumar Pandey …Appellant

Versus

Arvind Kumar Rai & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. This appeal by special leave is directed against the judgement  

and order dated 29th January, 2010 passed by the Division Bench of  

the  High  Court  of  Judicature  at  Calcutta  whereby  in  FMA  

No.1415/2009 filed by the respondent No.1 has been allowed, the  

order passed by the Single Judge of that Court set aside and the  

respondent-School Service Commission directed to act in terms of an  

earlier  order  dated 12th March 2009 passed by that  Court  in Writ  

Petition No. 6117(W) of 2004. The controversy arises in the following  

backdrop.  

3. Against  the  vacant  post  of  Headmaster  at  Howrah  Siksha  

Niketan, as many as five candidates applied for appointment to the

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School Service Commission, West Bengal. The Commission found two  

of those applying for the post to be ineligible but short listed the  

remaining three for consideration. Kavindra Narayan Roy, one of the  

candidates found ineligible questioned the rejection of his candidature  

in Writ Petition No.6117 (W) of 2004 filed before the High Court of  

Calcutta  and  obtained  an  interim order  staying  publication  of  the  

panel.  That order continued to remain operative for nearly five years  

till 2009 when the writ petitioner-Kavindra Narayan Roy withdrew the  

said  petition  as  he  had  by  that  time  attained  the  age  of  

superannuation.  The Single Judge of the High Court of Calcutta while  

dismissing the writ petition as withdrawn vacated all interim orders  

but  directed  that  the  period during which the  panel  could not  be  

operated due to the interim order passed in the writ petition should  

be excluded for computing the life of the panel.   

4. The School Service Commission, it appears, took no further  

steps in the matter nor was the panel published.  This led to the filing  

of the two writ petitions one of which happened to be Writ Petition  

No.5866 (W) of 2009 filed by respondent No.1-Shri Arvind Kumar Rai  

in which the said petitioner sought a mandamus directing the School  

Service Commission to recommend his name for appointment against  

the  available  vacancy.   His  case  was  that  since  the  Rajaram  

Choudhary who was placed at serial no.1 in the merit list had retired

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from service, he alone could be considered for appointment as he  

figured at serial No.2 of the list.   

5. The above petition came up before Dipankar Datta, J. and was  

dismissed by an order dated 27th July, 2009 holding that since more  

than  five  years  had elapsed ever  since the  selection process was  

initiated and since no panel had been published by the School Service  

Commission it was not possible to direct the Commission to appoint  

the petitioner-Shri Arvind Kumar Rai as Headmaster of the school.  

The Court further held that during the intervening period of five years  

several  other  candidates  would  have  acquired  eligibility  for  

consideration/appointment against the post of Headmaster of school  

and that in fairness to all of them they ought to be given a chance to  

offer their candidature. The Court further held that as the panel had  

not  been  published  the  writ  petitioner  could  not  claim  a  

recommendation  as  of  right  and  that  discretionary  remedy  under  

Article 226 of the Constitution could be exercised only when the Court  

was satisfied that it was equitable to do so.   

6. The appellant-Vijoy Pandey, too, in the meantime, filed Writ  

Petition No.7310 (W) of 2009 in which he prayed for a direction to the  

respondents to rescind, cancel and withdraw the panel for the post of  

Headmaster of the school prepared on the basis of the interview held  

on  6th January,  2004.  A  Single  Bench  of  the  Calcutta  High  Court

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entertained the said petition and by an order dated 4th August, 2009  

directed status quo to be maintained regarding appointment to the  

post of Headmaster.  Three appeals came to be filed in the above  

background before the Division Bench of the High Court. One of these  

appeals filed by Arvind Kumar Rai was directed against order dated  

27th July, 2009 passed by Dipankar Datta, J in Writ Petition No.5866  

of 2009.  The second appeal,  too,  was filed by Arvind Kumar Rai  

assailing order dated 4th August, 2009 passed by Soumitra Pal J. in  

Writ Petition No.7310 of 2009 directing status quo to be maintained.  

The third appeal was filed by appellant-Vijoy Kumar Pandey against  

order dated 12th March, 2009 passed by Dipankar Datta, J. in Writ  

Petition  No.6117  (W)  of  2004  whereby  the  School  Service  

Commission had been directed to exclude the period during which  

there was an interim order, while computing the life of the panel.

7. The first of the abovementioned three appeal was allowed by  

the Division Bench by an order dated 29th January, 2010 setting aside  

order  dated  27th July,  2009  passed  by  Dipankar  Datta,  J.  with  a  

direction to the School Service Commission to act in terms of the  

earlier order dated 12th March, 2009 passed by the very same Hon’ble  

Judge. Taking note of the said order of the Division Bench the second  

mentioned  appeal  preferred  against  the  interim  order  dated  4th  

August, 2009 passed by Soumitra Pal J.  was held to be infructuous

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and was disposed of by the Division Bench by an order dated 23rd  

August,  2010. The Court  was of the view that  in the light of the  

direction issued by a coordinate Bench directing the School Service  

Commission to give effect to the order dated 12th March, 2009 passed  

by the Dipankar Dutta, J. it was not possible to give any contrary  

direction to the Commission and that the interim order passed by the  

Single Judge to that effect had lost its force on that count.   

8. As  regards  the  appeal  filed  by  the  appellant-Vijoy  Kumar  

Pandey the Division Bench in its order dated 23rd August, 2010 held  

that in the light of the order dated 29th January, 2010 passed by a  

coordinate Bench there was no scope of challenging order dated 12th  

March, 2009 passed by Dipankar Datta, J. The Court made it clear  

that the appellant will be free to seek appropriate remedy before the  

appropriate forum in accordance with law.  A special leave petition  

filed  against  the  aforementioned  order  dated  23rd August,  2010  

passed by the Division Bench was withdrawn and was dismissed by  

this Court by order dated 21st January, 2011.  

9. The present appeal assails the correctness of the judgment  

and order dated 29th January, 2010 whereby the Division Bench of  

the High Court has allowed F.M.A. No.1415 of 2009 and set aside  

order  dated  27th July,  2009  passed  by  Dipankar  Datta  J.  in  Writ  

Petition  No.5866  (W)  of  2009  with  W.P.  6117  (W)  of  2004  and

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directed that the Commission shall act in accordance with order dated  

12th March, 2009 passed by the same Hon’ble Judge in Writ Petition  

No.6117(W) of 2004.

10. We have heard learned counsel for the parties at considerable  

length.  Even though we have retraced in detail the chequered history  

of  the  litigation  between  the  parties  the  question  that  falls  for  

determination  actually  lies  in  a  narrow  compass.  The  question  

precisely is whether any panel of candidates has been prepared by  

the Commission in accordance with the provisions of the West Bengal  

School Service Commission (Procedure for  selection of persons for  

appointment  to  the  post  of  teachers  including Head Masters/Head  

Mistresses  Superintendent  of  Senior  Madarasa  in  recognized  non-

Government Aided Schools and procedure for conduct of business of  

the Commission), Regulations, 1988; and if so, whether the same  

continued to be valid and subsisting to entitle the selected candidates  

or any one of them to a mandamus directing the competent authority  

to make an appointment on the basis thereof. We must regretfully  

say that  although repeated  rounds of  litigation have engaged the  

attention of the High Court, the High Court has not adverted to the  

question whether a panel was indeed prepared and published. It is  

only in its order dated 27th July, 2009 passed in W.P. No.5866 of  

2009 that Dipankar Datta,  J. has noticed the non-preparation and

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publication of such a panel and clearly held that since the panel has  

not  been  published,  no  recommendation  or  appointment  could  be  

claimed by any one of the candidates competing for the same. We  

need hardly emphasise that preparation and publication of a panel  

was the least which any candidate seeking appointment on the basis  

thereof was required to establish. We repeatedly asked Mr.  Dhruv  

Mehta, learned senior counsel appearing for Mr. Arvind Kumar Rai,  

the contesting respondent whether any such panel was ever prepared  

and published as it ought to be, having regard to the very nature of  

the procedure prescribed under the Regulations mentioned above. To  

the credit of Mr. Mehta, we must say that he fairly conceded that no  

such panel was ever published.  Not only that, Mr. Mehta did not  

dispute the proposition, and in our opinion rightly so, that publication  

of such a panel was absolutely essential not only because the entire  

process was regulated by statutory regulations but also because the  

publication was essential in the interest of transparency and probity  

in matters concerning appointments to offices under the State and in  

matters affecting rights of the citizens in discharge of governmental  

functions.   

11. We may at this stage refer to a decision of this Court in State  

of Andhra Pradesh & Ors. v. D. Dastagiri & Ors., (2003) 5 SCC  

373. In that case although the State Government had notified the

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vacancies  and  the  process  of  recruitment  had  been  initiated,  the  

results of the interviews thus conducted were not declared and no  

select list was published. The recruitment process was subsequently  

cancelled. The respondent candidates filed writ petitions before the  

High Court seeking a mandamus directing the appellants to appoint  

them, which were allowed. However, this Court allowed the appeals  

against the High Court’s order, observing:

“4. In the counter-affidavit filed on behalf of the respondents   … it is stated that the process of selection was cancelled at the   last stage i.e. before publishing the list of selected candidates   on  the  sole  ground  that  the  State  Government  wasted  to   introduce prohibition and obviously the Government felt that   there was no need of Excise Constables during imposition of   prohibition  in  the  State.  There  is  serious  dispute  as to  the   completion  of  the  selection  process.  According  to  the   appellants, the selection process was not complete. No record   has been placed before us to show that the selection process   was complete, but, it is not disputed that the select list was   not  published.  In  para 16 of  the  counter  affidavit,  referred   above,  the  respondents  themselves  had  admitted  that  the   selection  process  was  cancelled  at  the  last  stage.  In  the  absence of publication of select list, we are inclined to think   that  the  selection  process  was not  complete.  Be that  as  it   may,  even  if  the  selection  process  was  complete  and   assuming that only select list remained to be published, that   does not advance the case of the respondents for the simple   reason that even the candidates who are selected and whose   names find place in the select list, do not get vested right to   claim appointment based on the select list…”

(emphasis supplied)

12. We  too  have  at  hand  a  situation  where  no  panel,  as  is  

envisaged under  the provisions of the regulations, ever  came into  

existence. That being so, the question of determining the life of the

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panel by excluding the period during which there was an interim stay  

in accordance with the order of Dipankar Datta, J. in its order dated  

12th March, 2009 did not arise. It  follows that the claim made by  

respondent-Arvind Kumar Rai for appointment on the basis of such a  

non-existent panel was untenable as the panel itself was still born.  

We need not burden this judgment by referring to the decisions of  

this  Court  in  which  this  Court  has  repeatedly  held  that  the  

preparation of a select list or a panel does not by itself entitle the  

candidate  whose  name  figures  in  such  a  list/panel  to  seek  an  

appointment or claim a mandamus. No vested right is created by the  

inclusion of the name of a candidate in any such panel which can for  

good  and  valid  reasons  be  scrapped  by  the  competent  authority  

alongwith the entire process that culminated in  the preparation of  

such a panel.  

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

a Constitution Bench of this Court was examining whether candidates  

declared successful in a selection process acquire an indefeasible right  

to get appointed against available vacancies. The contention that they  

do acquire such a right was repelled in the following words:

“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  

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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.”

(emphasis supplied)

14. Above decision has been followed in a long line of subsequent  

decisions of  this  Court  including those  rendered in  Punjab State  

Electricity Board v. Malkiat Singh, (2005) 9 SCC 22; State of   

Bihar  &  Ors.  v.  Secretariat  Assistant  Successful  Examinees  

Union & Ors., (1994) 1 SCC 126; Director, SCTI for Medicine   

Science and Technology v. M. Pushkaran, (2007) 12 SCC 465;  

Union of India v. Kali Dass Batish, (2006) 1 SCC 779 [which is a  

three Judge Bench decision].  

15. In Rakhi Ray & Ors. v. The High Court of Delhi, (2010) 2   

SCC 637, a three-Judge Bench of this Court held:

“…  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….”

16. Following the decision in  Shankarsan Dass case (supra), this  

Court in State of Orissa & Anr. v. Rajkishore Nanda & Ors., 2010  

(6) SCALE 126 held:

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“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.”

17. Even assuming the preparation of a panel gave rise to any  

such  right,  since  no  panel  had  actually  ever  been  prepared  and  

published nor has the same been produced before the High Court or  

before us, we have no hesitation in holding that the direction issued  

to  the  Commission  to  act  on  the  basis  of  the  panel  was  wholly  

unjustified and unsustainable. The view taken by Dipankar Datta, J.  

in his order dated 27th July, 2009 that considerable time had expired  

since the selection process was initiated and that other candidates  

who may have in the meantime become qualified for consideration  

may be deprived of the right to compete was a reason enough for the  

High Court to decline a mandamus. In the facts and circumstances of  

the  case,  the  Division  Bench  of  the  High  Court,  in  our  view,  

committed an error in upsetting that direction.  We also see no real  

conflict  between  the  orders  passed by Dipankar  Datta,  J.  on  12th  

March, 2009 and that passed on 27th July 2009, inasmuch as the  

question of the adding to the life of the panel the period during which  

there was a stay would arise only if there was a panel drawn in terms  

of the Regulations.

18. We were informed by the parties that the respondent No.1 has

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been appointed as Headmaster during the pendency of the litigation  

at  the  pain  of  contempt  proceedings  against  the  parties.  That  

appointment  has  come  sometime  in  September  2010.  Since,  the  

order passed which appears to have culminated in the making of the  

appointment is being set aside, the question is whether we should  

direct immediate removal of the respondent or continuance of the  

arrangement  till  such time fresh  selection  process  is  initiated  and  

completed in accordance with law.  In our opinion, not only because  

the respondent has been holding the post for two years, but also  

because  his  removal  would  not  immediately  result  in  any  benefit  

either to the institution or to the appellant before us, we, therefore,  

permit him to continue holding the post but only till such time a fresh  

selection is made against the vacancy.

19. In the result, we allow this appeal, set aside the order passed  

by the Division Bench and affirm that passed by Dipankar Datta, J.  

dated 27th July, 2009 with the above direction.  We make it clear that  

the respondent No.1 shall be entitled to all the monetary benefits for  

the period during which he actually works as the Headmaster of the  

school. The fact that he so works would not, however, create any  

equity in his favour nor constitute an additional weightage in the new  

selection process.  

20. Parties are directed to bear their own costs.

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             ……..………….………. …..…J.

       (T.S. Thakur)

     …………………………..…..…J.              (M.Y. Eqbal)

New Delhi, February 13, 2013