DINESH KUMAR KASHYAP & ORS. ETC. versus SOUTH EAST CENTRAL RAILWAY & ORS. ETC. on 27 November 2018

[2018] 14 S.C.R. 947

DINESH KUMAR KASHYAP & ORS. ETC.

v.

SOUTH EAST CENTRAL RAILWAY & ORS. ETC.

(Civil Appeal Nos. 11360-11363 of 2018)

NOVEMBER 27, 2018

[KURIAN JOSEPH, DEEPAK GUPTA AND

HEMANT GUPTA, JJ.]

Service Law – Appointment – Respondent No.1-Railwaysissued advertisement inviting applications for filling up Group-Dposts for General Category in its Raipur, Bilaspur and Nagpurdivisions and workshops – According to the appellants, as per theexisting instructions dated 02.07.2008 the select list was to beprepared with 20% extra candidates in the replacement list –Appellants fall in the category of extra 20% – Claim of the appellantsbefore CAT that the Respondent No.1 be directed to fill in the unfilledvacancies in the General Category from this list of 20% candidates– Rejected – Writ petition filed by the appellants, also rejected –Held: Per Deepak Gupta, J. (for himself and Kurian Joseph, J.) Itis true, that mere selection does not give any vested right to theselected candidate to be appointed – However, at the same timewhen a large number of posts are lying vacant and selection processhas been followed, then the employer must satisfy the court as towhy it did not resort to and appoint the selected candidates, even ifthey are from the replacement panel – When the employer is theState it is bound to act according to Art.14 – There is no indicationin the pleadings that the vacancies were not to be filled up –Respondent No.1 failed to give any cogent reason to justify its actionof not calling for candidates from the replacement list of extra 20%candidates – Respondent No.1 to offer appointment to the eligibleappellants – Directions issued – [Per Hemant Gupta, J. (Dissenting)]State has a right not to appoint candidates even if they are in meritlist – Appellants do not possess indefeasible right of appointment –It is not the case, that any candidate lower in merit has beenappointed or the appointments have been made by pick and choosemethod ignoring merit – Stand of Railways that the requirement tofill up 624 vacant posts was not felt cannot be said to be arbitrary– No reason to interfere in the decision-making process of theRailways – Constitution of India – Art.14.

947

A

B

C

D

E

F

G

H

ADisposing of the appeals, the CourtHELD: Per Deepak Gupta, J. (for himself andKurian Joseph, J.)

1.1 It is true, that mere selection does not give any vestedright to the selected candidate to be appointed. At the sameBtime when a large number of posts are lying vacant and selectionprocess has been followed then the employer must satisfy thecourt as to why it did not resort to and appoint the selectedcandidates, even if they are from the replacement panel. TheState must give some justifiable, non-arbitrary reason for not fillingCup the post. When the employer is the State it is bound to actaccording to Article 14 of the Constitution. It cannot without anyrhyme or reason decide not to fill up the post. It must give someplausible reason for not filling up the posts. The courts wouldnormally not question the justification but the justificationmust be reasonable and should not be an arbitrary, capriciousDor whimsical exercise of discretion vested in the State.[Paras 6, 7][953-B-C; 954-C-D]

1.2 There is no indication in the pleadings that the vacancieswere not to be filled up. The fact that three simultaneous selectionprocesses were undertaken, itself proves that the RespondentENo. 1 wanted to fill up all the posts and did not want any vacanciesto be left unfilled. This negates the plea of the Respondent No. 1that it was not necessary to fill up the vacant posts. The appellantsherein who approached the CAT and the High Court withpromptitude cannot suffer only because the matter was pendingFin Court. The judgment of the High Court and CAT,Jabalpur Bench are set aside. Directions issued. TheRespondent No. 1 to offer appointment to the eligible appellants.[Paras 8, 10, 11, 14 and 15][954-F-G; 955-A-C; 955-F-G;956-B-C]

GR.S. Mittal v. Union of India (UOI) 1995 (2) Suppl. SCC230 : [1995] 2 SCR 1127 – relied on.

Per Hemant Gupta, J. (Dissenting)

1.1 In the present case, the appellants were called in forthe verification of documents as extra candidates to replace theHcandidates selected who do not join for one or the other reason.

Such candidates were called to meet out the necessity to fill up ofposts if the meritorious selected candidates do not join. The Statehas a right not to appoint candidates even if they are in merit list.The appellants do not possess indefeasible right of appointment.The reason given by the Railways in the counter affidavit is thatthe requirement to fill 624 posts was not felt in pursuance of anadvertisement in question as there was two simultaneous selectionprocesses in which 2839 candidates were appointed. Such reasoncannot be said to be wholly arbitrary which warrant a mandate tothe respondents to appoint the appellants who are not in meritlist but at best in the waiting list. The State has right not to fill upany vacancy advertised. The stand that the requirement to fill up624 vacant posts was not felt cannot be said to be arbitrarywarranting a mandamus to appoint the appellants. The Statecannot be directed to appoint candidates, when it does not requirethe posts to be filled up. The decision not to fill up vacancies hasbeen taken for appropriate reasons and is neither arbitrary nordiscriminatory. [Para 18][965-E-H; 966-A-B]

1.2 In exercise of power of Judicial Review, this Court isnot to substitute the decision of the Railways and to directcandidates in the waiting list to be appointed. The currency ofthe panel published in the month of March, 2014 is for a periodof two years. Since the validity of the select panel had come to anend on the efflux of time, therefore, there cannot be any order toappoint the persons from such select list prepared wayback inthe year 2014 in pursuance to the advertisement issued on15.12.2010. Such panel cannot be a perennial source ofappointment. There is no reason to interfere in thedecision-making process of the Railways, so as not to appointthe appellants against Group D posts advertised on15.12.2010. Consequently, there is no illegality in theorder passed by the Tribunal and the High Court. [Paras 20, 22- 24][968-B; 969-A-C]

Shankarsan Dash v. Union of India (1991) 3 SCC47 : [1991] 2 SCR 567 – followed.

State of Haryana v. Subash Chander Marwaha (1974)3 SCC 220 : [1974] 1 SCR 165 ; Jatinder Kumar v.

AB

C

D

E

F

G

H

AState of Punjab (1985) 1 SCC 122 : [1985] 1 SCR 899 ; S.S. Balu v. State of Kerala (2009) 2 SCC 479 :[2009] 1 SCR 196 ; Kulwinder Pal Singh v. State ofPunjab (2016) 6 SCC 532 : [2016] 4 SCR 439 – reliedon.

BR.S. Mittal v. Union of India 1995 Supp (2) SCC 230 :[1995] 2 SCR 1127 ; Union of India v. Kali Dass Batish(2006) 1 SCC 779 : [2006] 1 SCR 261 – referred to.

Case Law Reference

In the Judgment of Deepak Gupta, J. (for himself and KurianCJoseph, J.)

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 11360-11363 of 2018.F

From the Judgment and Order dated 27.03.2017 of the High Courtof Chhattisgarh at Bilaspur in Writ Petition No. 1459 of 2017 and orderdated 05.08.2015 in Writ Petition Nos. 1965 of 2015, 2348 of 2015 and2450 of 2016.

With

G

Civil Appeal No. 11364 of 2018.

Prashant Bhushan, Govind Jee, Advs. for the Appellants.

Vikramjit Banerjee, ASG, P. S. Sudheer, Merusagar Samantray,Vikas Bansal, Raj Bahadur Yadav, Leelesh Krishna, Mrs. Anil Katiyar,HAdvs. for the Respondents.

The Judgments* of the Court were delivered by DEEPAK GUPTA, J. 1. Leave granted.

2. Respondent No.1, South East Central Railway (for short theSECR) issued an advertisement on 15.12.2010 inviting applications forfilling up 5798 posts in the pay scale of Rs.5200-Rs. 20,200 + Grade Payof Rs.1800/- in Raipur, Bilaspur and Nagpur divisions and workshops.The claim of the original writ petitioners who filed applications beforethe Central Administrative Tribunal (for short CAT) was that as per theexisting instructions the select list was prepared with 20% extracandidates. Therefore, the result of 6995 candidates was declared whowere successful. The appellants fall in the category of extra 20%. TheSECR did not make the appointments from these 20% extra candidatesthough 624 posts remained unfilled in the general category itself. Theappellants who fall in the 20% category of extra candidates filedapplications before the CAT praying that the SECR be directed to fill inthe unfilled vacancies from this list of 20% candidates. This applicationwas 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 tothe instructions relied upon by the appellants. The relevant portion ofthe instruction reads as follows :- “……..

3. The issue has been examined and it has now been decidedby the Board that the number of candidates called for documentverification 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 thecandidate that the purpose of calling 20% candidates overand above the number of vacancies at the time of documentverification is primarily to avoid shortfall in the panel andthat merely calling a candidate for document verification doesnot, in any way, entitle him/her to an appointment in therailways.

(ii) Even where the number of candidates available afterdocumentverification exceeds the number of vacancies,the panel finalizedby RRC (Railway Recruitment Cell)

*One Judgment was delivered by Deepak Gupta, J. for himself and on behalf of KurianJoseph, J. The other Judgment was delivered by Hemant Gupta, J.

A

B

C

D

E

F

G

H

A

Ashall be equal to the number of vacancies only. In case, theRailway administration after giving stipulated joining time tothe selected candidates, certifies that certain number ofcandidates have not turned up within the specific period,another panel equal to the number of candidates finally notturning up for taking appointment will be supplied by RC.BBefore calling for replacement in-lieu of the candidates finallynot turning up for taking appointment CPO shall personallysatisfy himself that the procedure for cancellation of the offerof appointment to the originally empanelled candidates hasbeen strictly followed. Under no circumstances, the numberCof candidates covered in the original as well as replacementpanels shall exceed the number of vacancies indented bythe railway; and

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

…….”

4. From a reading of the order passed by the CAT it is apparentthat the stand taken by the SECR before the Tribunal was that the purposeof declaring the result of 20% extra candidates is to ensure that in theEeventuality of some of the candidates who are higher up in merit notturning up for document verification or being declared unfit in medicalexamination the unfilled posts can be filled from the reserved panel. Itwas the stand of the SECR that the purpose of calling 20% candidateswas to primarily avoid shortfall in the vacancies filled. It was alsoFsubmitted that merely calling the candidate for document verificationdoes not give any vested right to the candidate to be appointed. It wasfurther submitted that after 10.01.2014 the system of maintainingreplacement panels has been discontinued. According to the Tribunalthe appellants had no right to be appointed.

5. Aggrieved, the appellants approached the High Court ofGChhattisgarh in which they also took another plea that persons from the20% extra replacement panel had been offered appointment by theRailways 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 wasdismissed holding that the appellants herein had no right and also that H

merely because some appointments have been made in other zones fromthe replacement panel, it would not create any right in the appellants.

6. The main issue which arises before us is whether the SECRcould have ignored the 20% extra panel despite the letter dated 02.07.2008without giving any cogent reason for the same. No doubt, it is true, thatmere selection does not give any vested right to the selected candidateto be appointed. At the same time when a large number of posts arelying vacant and selection process has been followed then the employermust satisfy the court as to why it did not resort to and appoint theselected candidates, even if they are from the replacement panel. Justbecause discretion is vested in the authority, it does not mean that thisdiscretion can be exercised arbitrarily. No doubt, it is not incumbentupon the employer to fill all the posts but it must give reasons and satisfythe court that it had some grounds for not appointing the candidates whofound place in the replacement panel. In this behalf we may makereference to the judgment of this Court in R.S. Mittal vs. Union ofIndia (UOI)[1], wherein it was held as follows:-

10. ……………………..

.…………………….

It is no doubt correct that a person on the select panel has novested right to be appointed to the post for which he has beenselected. He has a right to be considered for appointment. But atthe same time, the appointing authority cannot ignore the selectpanel or decline to make the appointment on its whims. When aperson has been selected by the Selection Board and there is avacancy which can be offered to him, keeping in view his meritposition, then, ordinarily, there is no justification to ignore him forappointment. There has to be a justifiable reason to decline toappoint 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, wasgiven as to why the appointments were not offered to thecandidates expeditiously and in accordance with law. Theappointment should have been offered to Mr Murgad within areasonable time of availability of the vacancy and thereafter tothe next candidate. The Central Government’s approach in thiscase was wholly unjustified.”

1(1995) Suppl. 2 SCC 230

A

B

C

D

E

F

G

H

1(1995) Suppl. 2 SCC 230

A

B

C

D

E

F

G

H

954 SUPREME COURT REPORTS [2018] 14 S.C.R.

A7. Our country is governed by the rule of law. Arbitrariness is ananathema to the rule of law. When an employer invites applications forfilling up a large number of posts, a large number of unemployed youthapply for the same. They spend time in filling the form and pay theapplication fees. Thereafter, they spend time to prepare for theexamination. They spend time and money to travel to the place whereBwritten test is held. If they qualify the written test they have to againtravel to appear for the interview and medical examination etc. Thosewho are successful and declared to be passed have a reasonableexpectation that they will be appointed. No doubt, as pointed out above,this is not a vested right. However, the State must give some justifiable,Cnon-arbitrary reason for not filling up the post. When the employer isthe State it is bound to act according to Article 14 of the Constitution. Itcannot without any rhyme or reason decide not to fill up the post. Itmust give some plausible reason for not filling up the posts. The courtswould normally not question the justification but the justification must bereasonable and should not be an arbitrary, capricious or whimsical exerciseDof discretion vested in the State. It is in the light of these principles thatwe need to examine the contentions of the SECR.

8. On behalf of the SECR it has been contended that before callingfor replacement candidates the CPO was to satisfy himself that theprocedure for cancellation of the order of appointment of the originalEempanelled candidates has been strictly followed. It is urged that sincethis was not done the appellants could not be appointed. This argumentholds no merit. There is no indication in the pleadings that the vacancieswere not to be filled up. If an official of the Respondent No. 1 fails to dohis duty the appellants cannot suffer for the same. They are not at fault.

F

9. On behalf of the respondents it was urged before us that afterthe selection process in question 2 more selection processes were startedin 2012 and 2013. Resultantly, three recruitment cycles were runningconcurrently and, therefore, the vacancies were filled up in thesubsequent selections. This argument deserves to be rejected since itGwas not even raised before the Tribunal. Furthermore, the rights of theappellants who had appeared in the selection pursuant to the notificationof 2010 could not be taken away by the selection processes startedmuch later. They cannot be made to suffer for the delays on the part ofthe SECR.

10. The fact that three simultaneous selection processes wereundertaken, itself proves that the Respondent No. 1 wanted to fill up allthe posts and did not want any vacancies to be left unfilled. This negatesthe plea of the Respondent No. 1 that it was not necessary to fill up thevacant posts.

11. It has been urged before us that the validity of the panel wasonly for two years and since the last merit list was published for March2014, validity of the list has expired in March 2016. This submission isonly to be rejected. The appellants herein who approached the CATand the High Court with promptitude cannot suffer only because thematter was pending in Court.

12. Another submission raised on behalf of the SECR is that theappellants have obtained lower marks than the cut-offs prescribed in theselection processes held in the year 2012 and 2013. This amounts tocomparing apples to oranges. Every selection process has a differentexamination with different level of assessment. By no stretch ofimagination can comparison be made between the three differentselection processes.

13. Another argument raised is that recruitment policy is anexecutive decision and the courts should not question the efficacy ofsuch policy. Neither the appellants nor this Court is questioning theefficacy of the policy contained in the letter dated 02.07.2008. All thathas been done is to ensure implementation of the policy by the RespondentNo. 1, especially when it has failed to give any cogent reason to justifyits action of not calling for candidates from the replacement list of extra20% candidates.

14. In view of the above, the appeals are allowed. The judgmentof the High Court and CAT, Jabalpur Bench are set aside. The appellantsare entitled to the benefit of the letter dated 02.07.2008. While allowingthe appeals we issue the following directions:-

(i) The benefit of this judgment shall only be available to thoseappellants 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 fixationof pay be placed immediately above the first selected candidatesof the selection process which commenced in the year 2012 and, A

B

C

D

E

F

G

H

Aimmediately below the candidates of the selection list of 2010 inorder of seniority;

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

B

15. The Respondent No. 1 is directed to comply with the judgmentand offer appointment to the eligible appellants within a period of 3 monthsfrom today.

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

C

HEMANT GUPTA, J.

1. I have gone through the Judgment authored by my learnedbrother Justice Deepak Gupta. Respectfully, I am not able to agree withthe views expressed therein. My views are given hereunder:

D

2. The appellants are aspirants for appointment to the Group-Dposts for which an advertisement was issued by the South East CentralRailways for 5540 General category posts on 15.12.2010. Theadvertisement contemplated that 20% of the candidates would be calledfor documents verification as the extra candidates in terms of theEinstructions issued by the Railway Board on 02.07.2008 for placing thecandidates in the extra list. The relevant conditions contained in theaforesaid circular read as under:

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

F

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

(i) It has to be brought out clearly in the Call Letter to the candidatethat the purpose of calling 20% candidates over and above thenumber of vacancies at the time of document verification isprimarily to avoid shortfall in the panel and that merely calling acandidate for document verification does not, in any way, entitlehim/her to an appointment in the railways.

G

(ii) Even where the number of candidates available afterdocument verification exceeds the number of vacancies, the panelfinalized by RRC (Railway Recruitment Cell) shall be equal to H

DINESH KUMAR KASHYAP v. SOUTH EAST CENTRALRAILWAY [HEMANT GUPTA, J.]

number of vacancies only. In case, the Railway Administrationafter giving stipulated joining time to the selected candidates,certifies that certain number of candidates have not turned upwithin the specified period, another panel equal to the number ofcandidates finally not turning up for taking appointment will besupplied by RRC.Before calling for replacement in-lieu of thecandidates finally not turning up for taking appointment CPO shallpersonally satisfy himself that the procedure for cancellation ofthe offer of appointment to the originally empanelled candidateshas been strictly followed. Under no circumstances, the numberof candidates covered in the original as well as replacement panelsshall exceed the number of the vacancies indented by the railway;and

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

(emphasis supplied)

3. The process of appointment particularly in respect of extracandidates has been revised when Railway Board issued a circular No.6/RBE/2014 dated 10.01.2014. The said circular has done away with theprocedure of replacing candidates as contemplated in the earlier circulardated 02.07.2008.

4. As per the information contained in Annexure P-2, as many as509775 applications were received in response to the advertisement issuedon 15.12.2010 and out of which 162229 candidates appeared for thewritten test. After qualifying the written test, 10380 general candidateswere called for physical efficiency test. Since the appellants are generalcategory candidates, number of the candidates from the other categoriescalled for physical efficiency test is not mentioned in the affidavit. Thecut off marks in the written test was 40%. As many as 7697 generalcategory candidates qualified in the physical efficiency test. Thepercentage of cut off marks obtained for document verification in respectof the general category is 40.98%. The appointments against the postsadvertised were made on 11.3.2013; 9.7.2013 and in March 2014.

5. The appellants, who were not appointed against the Group-Dposts against the aforesaid advertisement process, filed OriginalApplications under section 19 of the Administrative Tribunal Act, 1985before the Central Administrative Tribunal, Jabalpur in the year 2014.

AB

C

D

E

F

G

H

A

6. Such nine connected Original applications were dismissed bythe Tribunal on 13.02.2015 inter-alia, holding as under:

“The right of candidates in 20% extra list begins only after ademand is made for replacement panel to Railway RecruitmentCell after duly following aforesaid procedure. The procedure forBworking out requirement of replacement panel is not part of eitherthe employment notification or selection procedure. The right ofapplicants for consideration starts only after certain appointmentorders of originally empanelled candidates are cancelled andthereafter a demand is raised for replacement panel. Since nodemand has been made in view of the procedure specified inCnotification dated 2.07.2008 (Annexure R-4) no right forconsideration of the applicants has either acquiesced or beeninfringed.”

7. The Writ Petition filed by the appellants before ChhattisgarhHigh Court remained unsuccessful vide judgment dated 05.08.2015. TheDCourt held as under:

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

E

8. Before this Court, learned counsel for the appellants relies uponGthe 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 toseek appointment but the respondents cannot act in arbitrary manner todeny the benefit of right of appointment as the State has to act in a non-discriminatory and non-arbitrary manner. Therefore, the denial ofappointment to the appellants is not sustainable. It is also argued that outHof 5540 posts in the general category as many as 624 posts have remained unfilled. Therefore, such posts could be very well filled up by thecandidates who are in the category of replacement candidates (extralist) such as the appellants.

9. In the counter affidavit, it has been pointed out that two separateappointment processes were also initiated, one on 25.08.2012 to fill up2017 posts of the general category and another on 14.12.2013 to fill up1195 general category posts. In the said selection processes, 2839candidates have been empanelled as against 3212 posts advertised. Suchcandidates have already joined. It is also averred that three recruitmentcycles i.e. one in respect of which appellants were the candidates andthe 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 issuedprimarily as there was no demand for issue of Replacement Panelsfrom the Divisions/Units. While the Recruitment process to theEmployment Notification No. SECR/02/2010 was underway, withthe approval of Railway Board, two more Notifications under No.SECR/03/2012 dated 25.08.2012 for 2215 (198 PhysicallyHandicapped + 2017 Non-PH) posts and SECR/04/2013 dated14.12.2013 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, 1977and 862 Non-PH candidates have been empanelled respectively.As such a total of 2839 Non-PH candidates have been empanelledagainst two subsequent cycles of Employment Notifications.

v. Regarding the claim of the appellants and similarly placedcandidates (who are candidates falling in 20% extra candidateszone against employment Notification No. SECR/02/2010) for issueof replacement panels against around 600 candidates who did notjoin, it is submitted that the effect of non-joining of 600 oddcandidates was not felt since in a short time margin 2839 Non-PH candidates were empanelled and the panels weresupplemented to the Divisions/Units.

vii. Hence it goes without saying that the 2839 empanelledcandidates against two subsequent employment notificationsSECR/03/2012 and SECR/04/2013, are far superior in merit as A

B

C

D

E

F

G

H

Acompared 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 weregoing on parallel to the Employment Notification No. SECR/02/2010, the necessity of replacement panels was not felt and notBasked for as such.”

10. In this factual basis, firstly, it needs to be examined as to whatis the status of the appellants who were called for document verificationover and above the number of posts advertised. The circular dated02.07.2008 is to the effect that 20% candidates are to be called to avoidCthe shortfall in the panel and that merely calling a candidate for documentverification does not, in any way, entitle him/her to an appointment in therailways. It is also contemplated that replacement panel shall includeonly such number of reserved / unreserved candidates as have not turnedup as per original panel. Therefore, the 20% extra candidates were calledto substitute the candidates who do not report within the joining timeDgranted to the selected candidates. Such candidates at best can be saidto be the candidates in the waiting list of the candidates to be called forappointment if the selected candidates do not join for one or the otherreason.

11. The next question is as to whether a candidate acquires anyEright to appointment being in the merit list. Such question has beenexamined in number of judgments time and again by this Court. In ajudgment reported as State of Haryana v. Subash Chander Marwaha,(1974) 3 SCC 220, it has been held that the State has a right not toappoint a candidate even if his name appears in the merit list. The Courtheld as under: -F

“ 7. In the present case it appears that about 40 candidates hadpassed the examination with the minimum score of 45%. Theirnames were published in the Government Gazette as required byRule 10(1) already referred to. It is not disputed that the mereGentry in this list of the name of candidate does not give him theright to be appointed. The advertisement that there are 15vacancies to be filled does not also give him a right to be appointed.It may happen that the Government for financial or otheradministrative reasons may not fill up any vacancies. In such acase the candidates, even the first in the list, will not have a rightHto be appointed. The list is merely to help the State Government in making the appointments showing which candidates have theminimum qualifications under the Rules. The stage for selectionfor appointment comes thereafter, and it is not disputed that underthe Constitution it is the State Government alone which can makethe 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 andselection for the purpose of recruitment against anticipated vacanciesdoes not create a right to be appointed to the post which can be enforcedby a mandamus. The Court held as under: -

“ 12. …... This, however, does not clothe the appellants with anysuch right. They cannot claim as of right that the Governmentmust accept the recommendation of the Commission. If, however,the vacancy is to be filled up, the Government has to makeappointment strictly adhering to the order of merit as recommendedby the Public Service Commission. It cannot disturb the order ofmerit according to its own sweet will except for other good reasonsviz. bad conduct or character. The Government also cannot appointa person whose name does not appear in the list. But it is open tothe Government to decide how many appointments will be made.The process for selection and selection for the purpose ofrecruitment against anticipated vacancies does not create a rightto be appointed to the post which can be enforced by a mandamus.We are supported in our view by the two earlier decisions of thisCourt in A.N. D’Silva v. Union of India AIR 1962 SC 1130and State of Haryana v. Subash Chander Marwaha (1974) 3SCC 220. The contention of Mr Anthony to the contrary cannotbe accepted.”

13. In Shankarsan Dash v. Union of India, (1991) 3 SCC 47, aConstitution Bench of this Court held that the notification for anappointment merely amounts to an invitation to qualified candidates toapply for recruitment and on their selection, they do not acquire anyright to the post. It was held as under:

“7. It is not correct to say that if a number of vacancies arenotified for appointment and adequate number of candidates arefound fit, the successful candidates acquire an indefeasible rightto be appointed which cannot be legitimately denied. Ordinarilythe notification merely amounts to an invitation to qualified A

B

C

DEF

GH

Acandidates to apply for recruitment and on their selection they donot acquire any right to the post. Unless the relevant recruitmentrules so indicate, the State is under no legal duty to fill up all orany of the vacancies. However, it does not mean that the Statehas the licence of acting in an arbitrary manner. The decision notto fill up the vacancies has to be taken bona fide for appropriateBreasons. And if the vacancies or any of them are filled up, theState is bound to respect the comparative merit of the candidates,as reflected at the recruitment test, and no discrimination can bepermitted. This correct position has been consistently followed bythis Court, and we do not find any discordant note in the decisionsCin State of Haryana v. Subash Chander Marwaha (1974) 3SCC 220, Neelima Shangla v. State of Haryana (1986) 4 SCC268, 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 rightDto fill up all the posts or not to fill them up. A candidate will have no legalright for claiming a writ in the nature of mandamus unless there isdiscrimination 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 beElost sight of. A person does not acquire a legal right to be appointedonly because his name appears in the select list. (See Pitta NaveenKumar v. Raja Narasaiah Zangiti [(2006) 10 SCC 261. The Stateas an employer has a right to fill up all the posts or not to fill themup. Unless a discrimination is made in regard to the filling up ofthe vacancies or an arbitrariness is committed, the candidateFconcerned will have no legal right for obtaining a writ of or in thenature of mandamus. (See Batiarani Gramiya Bank v. PallabKumar (2004) 9 SCC 100. In Shankarsan Dash v. Union ofIndia (1991) 3 SCC 47 a Constitution Bench of this Court held:(SCC pp. 50-51, para 7)

G

“7. It is not correct to say that if a number of vacancies arenotified for appointment and adequate number of candidatesare found fit, the successful candidates acquire an indefeasibleright to be appointed which cannot be legitimately denied.Ordinarily the notification merely amounts to an invitation toHqualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless therelevant recruitment rules so indicate, the State is under nolegal duty to fill up all or any of the vacancies. However, itdoes not mean that the State has the licence of acting in anarbitrary manner. The decision not to fill up the vacancies hasto be taken bona fide for appropriate reasons. And if thevacancies or any of them are filled up, the State is bound torespect the comparative merit of the candidates, as reflectedat 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 beappointed. He in terms of Article 16 of the Constitution ofIndia has only a right to be considered therefor. Considerationof the case of an individual candidate although ordinarily isrequired to be made in terms of the extant rules but strictadherence thereto would be necessary in a case where therules operate only to the disadvantage of the candidatesconcerned 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 acandidate may appear in the merit list but he has no indefeasible right toseek an appointment. It was held as under:

“10. It is fairly well settled that merely because the name of acandidate finds place in the select list, it would not give himindefeasible right to get an appointment as well. The name of acandidate may appear in the merit list but he has no indefeasibleright to an appointment vide Food Corporation of India v. BhanuLodh (2005) 3 SCC 618, All India SC & ST Employees’Assn. v. A. Arthur Jeen (2001) 6 SCC 380 and UPSC v. GauravDwivedi (1999) 5 SCC 180.

11. This Court again in State of Orissa v. RajkishoreNanda (2010) 6 SCC 777, held as under: (SCC p. 783, paras 14& 16)

“14. A person whose name appears in the select list does notacquire any indefeasible right of appointment. Empanelment A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

at best is a condition of eligibility for the purpose of appointmentand by itself does not amount to selection or create a vestedright to be appointed. The vacancies have to be filled up as perthe statutory rules and in conformity with the constitutionalmandate.

* * *

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

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

16. The stand of the Railways before the Tribunal was that the20% extra candidates were called to take care for eventualities such asthe unfitness of the candidates at the stage of medical examination ornot turning up of the candidates for document verification etc. It is alsoaverred that in spite of vacancies remaining unfilled due to non-joiningof selected candidates, no appointment from the extra candidates canbe claimed in view of the instructions of the Railway Board. The standof Railways in reply before the Tribunal was not that there wassimultaneous selection process for Group-D posts and for which 2839

candidates were appointed but the fact remains that such an avermenthas been made before this Court and such an assertion has not beencontroverted.

17. The judgment in R.S.Mittal case (supra) deals withappointment of members of the Income Tax Appellate Tribunal by aSelection Committee chaired by a Judge of this Court. The CentralGovernment has not passed any order on the recommendation of suchSelection Committee. The said Judgment has been explained in anotherjudgment reported as Union of India v. Kali Dass Batish, (2006) 1SCC 779. This Court held as under:

“20. The respondents have relied on the judgments of this Courtin R.S. Mittal v. Union of India 1995 Supp (2) SCC 230 in supportof their contentions. In our view, the said authority hardly advancestheir case. In the first place, all that the authority says is thatwhere a Selection Board headed by a sitting Judge of the SupremeCourt had recommended certain candidates for appointment asmembers of ITAT, it was not open to the Government of India tosit on the said recommendation without taking action. That wasnot a case where a decision taken not to appoint a candidate forgood reason was concurred in by the Chief Justice of India.”

18. However, in the present case, the appellants were called infor the verification of documents as extra candidates to replace thecandidates selected who do not join for one or the other reason. Suchcandidates were called to meet out the necessity to fill up of posts if themeritorious selected candidates do not join. In terms of ShankarsanDash case (supra), the State has a right not to appoint candidates evenif they are in merit list. The appellants do not possess indefeasible rightof appointment. It is not the case, that any candidate lower in merit hasbeen appointed or the appointments have been made by pick and choosemethod ignoring merit. The reason given by the Railways in the counteraffidavit is that the requirement to fill 624 posts was not felt in pursuanceof an advertisement in question as there was two simultaneous selectionprocesses in which 2839 candidates were appointed. Such reason cannotbe said to be wholly arbitrary which warrant a mandate to the respondentsto appoint the appellants who are not in merit list but at best in the waitinglist. The State has right not to fill up any vacancy advertised. The standthat the requirement to fill up 624 vacant posts was not felt cannot besaid to be arbitrary warranting a mandamus to appoint the appellants.

A

B

CD

E

F

G

H

AThe State cannot be directed to appoint candidates, when it does notrequire the posts to be filled up. The decision not to fill up vacancies hasbeen taken for appropriate reasons and is neither arbitrary nordiscriminatory.

19. Still further, in exercise of power of Judicial Review, this CourtBis not to substitute the decision of the Railways and to direct candidatesin the waiting list to be appointed. In three Judge Bench judgment reportedas Kali Dass Batish case (supra), it has been held that mere inclusionof a candidate’s name in the selection list gave him no right, and if therewas no right, there could be no occasion to maintain a writ petition forenforcement of a non-existing right. It has been also held that howeverCvide the power of judicial review under Article 226 or 32 of theConstitution, there is self-recognised limit to exercise such power. TheCourt held as under: - “15. In this matter, the approach adopted by the Jharkhand HighCourt commends itself to us. The Jharkhand High CourtDapproached the matter on the principle that judicial review is notavailable in such a matter. The Jharkhand High Court also rightlypointed out that mere inclusion of a candidate’s name in theselection list gave him no right, and if there was no right, therecould be no occasion to maintain a writ petition for enforcementEof a non-existing right.

*

17. In K. Ashok Reddy v. Govt. of India (1994) 2 SCC 303, thisCourt indicated that however wide the power of judicial reviewunder Article 226 or 32 there is a recognised limit, albeit self-Frecognised, to the exercise of such power. This Court reiterated apassage 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 theexistence and extent of prerogative power, but not the mannerGof exercise thereof. … The traditional position has howevernow been modified by the decision in GCHQ case [Councilof 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 DINESH KUMAR KASHYAP v. SOUTH EAST CENTRALRAILWAY [HEMANT GUPTA, J.]

discretionary power should be dependent upon the subject-matter thereof, and not whether its source was statute or theprerogative. Certain exercises of prerogative power would,because of their subject-matter, be less justiciable, with LordRoskill compiling the broadest list of such forbidden territory….”

The observations of Lord Roskill, referred to above, arefrom Council of Civil Service Unions v. Minister for the CivilService 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 prerogativepower which is exercised. Many examples were given duringthe argument of prerogative powers which as at present advisedI do not think could properly be made the subject of judicialreview. Prerogative powers such as those relating to the makingof treaties, the defence of the realm, the prerogative of mercy,the grant of honours, the dissolution of Parliament and theappointment 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.”

18. Finally, this Court emphasised judicial restraint by citing withapproval a passage in de Smith’s Judicial Review ofAdministrative Action (vide SCC p. 316, para 23) as under:

“Judicial self-restraint was still more marked in cases whereattempts were made to impugn the exercise of discretionarypowers by alleging abuse of the discretion itself rather thanalleging non-existence of the state of affairs on which the validityof its exercise was predicated. Quite properly, the courts wereslow to read implied limitations into grants of wide discretionarypowers which might have to be exercised on the basis of broadconsiderations of national policy.”

Based on this reasoning, it was acknowledged that the transfer ofa Judge of the High Court based on the recommendation of theChief Justice of India would be immune from judicial review asthere is “an inbuilt check against arbitrariness and bias indicatingabsence of need for judicial review on those grounds. This is howthe area of justiciability is reduced…. [Ibid., para 24] “

A

B

C

D

E

F

G

H

A19. We, respectfully, reiterate these observations, and expect themto be kept in mind by all courts in this country invested with thepower of judicial review.”

20. Further in the written submissions submitted on behalf of therespondents, reliance is placed on the circular dated 18.07.2005 to sayBthat the currency of the panel published in the month of March, 2014 isfor a period of two years. Such period can be extended by the GeneralManager by one year in case of administrative exigencies.

21. Somewhat similar question was considered in a recentJudgment dated 22[nd] November, 2018 of this Court in Civil Appeal No.C11149 of 2018 entitled Uttar Pradesh Public Service Commission v.Surender Kumar & Ors., whereby the Government Ordercontemplated that the wait-list can be operated only for a period of oneyear, deciding the said aspect, the Court held as under:

“12. Having heard the learned counsels on both sides, we haveperused the order dated 18.05.2018 passed by the High Courtand other material placed on record. For the purpose of operatingwait-list, Government of Uttar Pradesh has issued instructionsfrom time to time. It is clear from the various Government Ordersthat wait-list period is valid only for a period of one year. Thoughrequisition is made for making selection for 178 number of posts,but appellant Commission, after delcaring results of theexamination, has made initial recommendation for substantivenumber of posts, i.e., 156 posts vide letter dated 12.08.2010. Itappears that the said list is prepared by including candidates whohave submitted all the requisite documents within the periodprescribed. Further recommendations were also made, but thereis no reason for not computing the period of one year from12.08.2010. When recommendations were made for substantivenumber of posts on 12.08.2010, we are of the view that period ofone year for operating wait-list is to be computed from 12.08.2010but not from the last recommendation made for one post, videletter dated 28.08.2012. The reason for restricting 156 names inthe initial recommendation vide letter dated 12.08.2010, is explainedin paragraph 11 of the counter affidavit filed before the HighCourt”.

D

E

F

G

DINESH KUMAR KASHYAP v. SOUTH EAST CENTRALRAILWAY [HEMANT GUPTA, J.]

22. Since the validity of the select panel has come to an end onthe afflux of time, therefore, there cannot be any order to appoint thepersons from such select list prepared wayback in the year 2014 inpursuance to the advertisement issued on 15.12.2010. Such panel cannotbe a perennial source of appointment.

23. Thus, in exercise of power of judicial review, I do not find anyreason to interfere in the decision-making process of the Railways, soas not to appoint the appellants against Group D posts advertised on15.12.2010.

24. Consequently, I do not find any illegality in the order passedby the Tribunal and the High Court. The appeals are accordinglydismissed. No Costs.

Divya Pandey

Appeals disposed of.

A

B

C

D

E

F

G

H