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State Of Haryana vs Subash Chander Marwaha And Ors on 2 May, 1973
Neelima Shangla Ph.D. Candidate vs State Of Haryana & Ors on 17 September, 1986
Jitendra Kumar & Ors vs State Of Haryana & Anr on 11 December, 2007
Jatinder Kumar & Ors vs State Of Punjab & Ors on 28 September, 1984
Article 226 in The Constitution Of India 1949
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Sh. Chaman Lal vs Municipal Corporation Of Delhi on 13 January, 2010
Suresh Harmilapi vs Sports Authority Of India And Ors. on 10 January, 1995
Chairman Cum Managing Director ... vs Allauddin Siddiqui And Others on 28 August, 2010
Trilok Nath Mishra And Ors. vs State Of U.P. And Anr. on 17 July, 2002

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Supreme Court of India
Shankarsan Dash vs Union Of India on 30 April, 1991
Equivalent citations: 1991 AIR 1612, 1991 SCR (2) 567
Author: L Sharma
Bench: Ray, B.C. (J), Shetty, K.J. (J), Sharma, L.M. (J), Venkatachalliah, M.N. (J), Verma, Jagdish Saran (J)
           PETITIONER:
SHANKARSAN DASH

	Vs.

RESPONDENT:
UNION OF INDIA

DATE OF JUDGMENT30/04/1991

BENCH:
SHARMA, L.M. (J)
BENCH:
SHARMA, L.M. (J)
RAY, B.C. (J)
SHETTY, K.J. (J)
VENKATACHALLIAH, M.N. (J)
VERMA, JAGDISH SARAN (J)

CITATION:
 1991 AIR 1612		  1991 SCR  (2) 567
 1991 SCC  (3)	47	  JT 1991 (2)	380
 1991 SCALE  (1)848


ACT:
     Civil Services: Recruitment by Competitive Examination-
Candidate   included  in  merit	 list-Whether  acquires	  an
indefeasible  right of appointment-Filling up of  vacancies-
Adoption  of  different	 policy	 for  general  and  reserved
categories-Whether   arbitrary	 and   discriminatory-Indian
Police	Service (Cadre) Rules, 1954: Rule 4:  Indian  Police
Service	 (Recruitment) Rules; Rules 3,4,6 and 7; and  Indian
Police	Service	 (Appointment  by  Competitive	Examination)
Regulations:Regulations 2(1) (a), 8 and 13-Applicability of.



HEADNOTE:
     On	 the  basis  of the results of	the  combined  Civil
Services  Examination  held  by	 the  Union  Public  Service
Commission  for	 appointment  to several  Services  and	 the
position  in the combined merit list for the  Indian  Police
Service	 and  Police Services, Group `B' the  appellant	 was
appointed   to	 the  Delhi  Andaman  and   Nicobar   Police
Service,also  Known  as	 DANIP.	 Subsequently  when  certain
vacancies  arose  in  the  Indian  Police  Service,  due  to
selected  candidates not joining the Service, and  only	 the
reserved   category   vacancies	 were  filled  up   by	 the
candidates, who had been earlier appointed in DANIP Service,
the  appellant who came to occupy top position,	 represented
to the authorities for filling the general vacancies   also,
but  his request was turned down .Hence the appellant  filed
writ application before the High Court, which was  dismissed
in limine .
     In	 the  appeal  before this Court, on  behalf  of	 the
appellant  it  was contended that since	 ultimately  several
vacancies  in  the  general category  of  the  IPS  remained
unfilled,  he was entitled to be appointed in one  of  them,
that  since 54 vacancies were notified for general  category
and  he	 was  found  qualified	for  the  appointment,	 the
respondent  could not refuse to fill up the  vacancies,	 and
there	was  no	 justification	to  refuse  to	follow	 the
procedure  adopted in similar situation with respect to	 the
reserved  category,  in	 regard	 to  the  general   category
vacancies  also and that in view of the	 relevant  statutory
rules,	the authorities were under a duty to  continue	with
the  process of filling up the vacancies until	 nonremained
vacant,	 and by keeping the posts unfilled, they  had  acted
arbitrarily.
						       568
     On	 behalf	 of  the respondent-Union of  India  it	 was
contended that the tentative service allocation for IPS	 was
completed before the commencement of the foundational course
for the IPS, and the process of final service allocation was
closed	after	filling	 up  certain  vacancies,  which	 had
arisen, since the process for recruitment for the next	year
had  already  started, and hence  the  additional  vacancies
arising	 later remained unfilled, that the process  followed
in  connection with the reserved category, was not  followed
in  regard to the general category vacancies on	 account  of
vital  differences obtaining in the relevant  conditions  in
the two categories, and hence there was no discrimination or
arbitrariness,	in  keeping the general	 category  vacancies
unfilled.
     Dismissing the appeal, this Court
     HELD:   1.1   Even	 if  vacancies	are   notified	 for
appointment and adequate number of candidates are found fit,
the  successful	 candidates do not acquire  an	indefeasible
right  to be appointed. 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.
[572A-C]
     State  of	Haryana	 v.  Subhash  Chander  Marwaha	 and
Others,[1974]  1 SCR 165; Miss Neelima Shangla v.  State  of
Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar	 and
Others	v.  State of Punjab  and others, [1985] 1  SCR	899,
referred to.
     1.2  The  appellant  had not acquired  a  right  to  be
appointed against the vacancy arising later on the basis  of
any  of	 the  rules, namely, Rule 4  of	 the  Indian  Police
Service (Cadre) Rules, 1954, Rules 3,4,6 and 7 of the Indian
Police	Service	 (Recruitment) Rules, 1954  and	 Regulations
2(1)(a)	 and  (c),  8 and 13 of the  Indian  Police  Service
(Appointment   by  Competitive	 Examination)	Regulations,
1955.These Provisions do not indicate that all the  notified
vacancies are to be filled up.[573G,574B]
     1.3  From the materials placed before the Court  it  is
fully estab-
						       569
lished that there has not been any arbitrariness  whatsoever
on the part of the respondent in filling up the vacancies in
question or other vacancies. The process of final  selection
had  to	 be  closed at some stage as was  actually  done.  A
decision  in  this  regard was	accordingly  taken  and	 the
process	 for further allotment to any vacancy arising  later
was closed. It is not material if in pursuance of a decision
already taken before closing the process of final selection,
the  formal  appointments  were	 concluded  later.  What  is
relevant is to see as to when the process of final selection
was  closed. Mere completing the formalities dose  not	give
any right to appointment. [574E-G]
     1.4  The  decision	 to adopt a  different	policy	with
respect to filling up of the reserved vacancies is justified
on  account  of the special circumstances. The	decision  to
depart	 from	the  confirmed	policy	 was   taken   after
consideration  by the authorities of the position in  regard
to unavailability of qualified candidates from year to	year
adversely  affecting  the desired strength of  the  reserved
candidates  in the services and cannot be condemned  on	 the
grounds of arbitrariness and illegal discrimination. [575B]



JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8613 of 1983.

From the Judgment and Order dated 21.1.1981 of the Delhi High Court in Civil Writ No. 41 of 1981.

P.K.Goswamy and Kailash Vasudev for the Appellant. V.C. Mahajan, Ashok Bhan and C.V. Subba Rao for the Respondent.

The Judgment of the Court was delivered by Sharma, j. This appeal was earlier heared by a Division Bench and was referred to a Constitution Bench for examining the question whether a candidate whose name appears in the merit list on the basis of a competitive examination, acquires indefeasible right of appointment as a Government servant if a vacancy exists. Reference was made to the decision in State of Haryana v. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla, Ph.D.v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others. [1985] 1SCR

899. 570

2. The appellant was selected in the combined Civil Services Examination held by the Union Public Service Commission for appointment to several services including the Indian Police Service (in short `the IPS') and the Police Services Group `B'. The examination had been held in October, 1977 and the result was announced in May 1978. A combined merit list for the IPS and the Police Services Group `B' was announced which included the name of the appellant. Out of the total number of 70 vacancies in the IPS announced to be filled up, 54 were of general category and the remaining 16 reserved for Scheduled Castes/Scheduled Tribes candidates. The position of the appellant in the merit list was not high enough to be included in the IPS and he was offered appointment to the Delhi Andaman and Nicobar police Service (hereinafter referred to as the `DANIP')in Police Service Group `B' which he accepted. On account of several candidates, allotted to Police Services Group `B'not Joining, the position of the appellant improved and ultimately he was on the top of the list.

3. In June, 1979, 14 Vacancies arose in the IPS due to selected candidates not joining the service. Out of the same, 11 were in the general category and 3 in the reserved category. Three vacancies in the reserved category were filled up by the candidates who had been earlier appointed in DANIP Service, but no appointments were made to general category vacancies. The appellant, by a representation, prayed that these vacancies also should be filled up. The request was turned down, and the appellant moved the Delhi High Court by a writ application under Article 226 of the Constitution, which was dismissed in limine by the impugned order.

4. The case of the appellant is that since ultimately several vacancies in the general category of the IPS remained unfilled, he was entitled to be appointed in one of them, and the authorities were not right in rejecting his representation. It has been contended that after calculating the number of vacancies in the IPS, it was announced that appointments would be made in 54 vacancies of general category, and steps for recruitment were accordingly taken. The appellant along with others appeared at the elaborate test held for the purpose and he was found qualified for the appointment .In that situation the respondent could not refuse to fill up the vacancies and proceed to appoint the appellant in the Police Services Group `B'. It has been argued that the correct procedure in similar situation was followed with respect to the reserved category and the three vacancies arising in identical situation were filled up from the candidates selected for DANIP Service, and 571 there was no justification to refuse similar benefit to the appellant in the general category.

5. According to the case of the Union of India, the process for the recruitment in question started in 1977, and the tentative service allocation for IPS was completed before the commencement of the foundational course in July, 1978. All the candidates selected for IPS, excepting those who were eligible to appear at the examination for the Indian Administrative Service scheduled to be held in October -November, 1978, and such other candidates who had not been finally cleared on account of pending medical examination or character verification had to attend the foundational course. Candidates allocated to Police Services Group `B' were not required to undergo this course. By June, 1978, 7 more vacancies arose on account of candidates not joining IPS due to various reasons, and 7 persons in order of merit from the joint list of the IPS and the Police Services Group `B' were allowed to fill up these vacancies. The last one in this list of 7 candidates was Shekhar Singh at serial No. 94. The appellant could not get a chance as his position was 100th. This process of final service allocation was closed on 24.10.1978 or at the latest by 4.11.1978, in view of the process for recruitment for the year 1978, which had already started. The additional vacancies arising later,therefore, remained unfilled.The entire procedure which is followed for recruitment to the Services has been given in several affidavits of the respondent, and detailed information in this regard was supplemented by a further affidavit during the hearing of the hearing of the appeal filed in the light of observations of the Bench.

6.Dealing with the appointments to reserved category,it has been stated in the counter affidavit that the process which was followed in connection with the general category and which was being earlier followed for the reserved category also, was relaxed in pursuance of a policy decision taken after examining all relevant circumstances and materials in regard to this category including the strength of the reserve category in the IPS, the result of the examinations for the year 1975,1976 and 1977. The procedure which was being followed in the past was not relaxed in regard to the general category on account of vital differences obtaining in the relevant conditions in the two categories and the appellant's plea of alleged discrimination does not have any merit. Similarly the case of one Km. Vandana Srivastava cited by the appellant has also been distinguished and Mr. Goswami, therefore , did not pursue this plea any further in his final reply.

572

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. 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. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899.

8. In State of Haryana v. Subhash Chander Marwaha and Others, (supra) 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55% marks, were appointed, although under the relevant rules the eligibility condition required only 45% marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55% marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the Government to decide how MANY appointments should be made and although the High Court had appreciated the position correctly, it had ``somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies''. It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jitendra Kumar and Others v. State of Punjab and Others, was turned down holding that it was open to the Government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was had that the candi-

573

dates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Miss Neelima Shangla v. State of Haryana was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the Government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The Government accordingly made only 17 appointments and stated before the Court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the Government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and there must be a conscious application of mind by the Government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant.

9. Mr. Goswami appearing in support of the appeal has contended that in view of the relevant statutory rules, the authorities were under a duty to continue with the process of filling up all the vacancies until none remained vacant. Reference was made to r. 4 of the Indian Police Service (Cadre) Rules, 1954, rr. 3,4,6 and 7 of the Indian Police Service (Recruitment) Rules, 1954 and rr., 2(1)(a), 2(1)(c), 8 and 13 of the Indian Police Service (Appointment by competitive Examination) Regulations, 1965. We do not think any of these rules comes to the aid of the appellant. Rule 3 of the Cadre Rules directs constitution of separate cadres for States or group of States, and r. 4 empowers the Central Government to determine the strength in consultation with the State Governments. The strength has to be re-examined at intervals of 3 years. Rule 3 of Recruitment Rules deals with the constitution of the Service, and r. 4 the method of recruitment. Rules 6 and 7 give further details in this regard. The learned counsel could not point out any provision indicating that all the notified vacancies have to be filled up. Similar is the position with respect to the Competitive Examination Regulations. Regulation 2(1)(a) defines available vacancies as vacancies determined by the Central Government to be filled on the results of the examination, described in Regulation 2(1)(a). Regulation 8 prescribes that the candidates would be considered for appointment to the available 574 vacancies subject to provisions 9 to 12 and Regulation 13 clarifies the position that a candidate does not get any right to appointment by mere inclusion of his name in the list. The final selection is subject to satisfactory report on the character, antecedent and suitability of the candidates. We, therefore, reject that the claim that the appellant had acquired a right to be appointed against the vacancy arising later on the basis of any of the rules.

10. The main contention on behalf of the appellant has been, however, that the authorities in keeping the vacancies arising later unfilled, acted arbitrarily. Mr. Goswami referred to several documents annexed to the special leave petition and affidavits filed on behalf of the parties and contended that although appointments of many candidates in the other services were made in the later vacancies, the vacancy in the Indian Police Service which subsequently became available to the appellant was refused without any just cause, resulting in illegal discrimination. This was emphatically denied on behalf of the respondent. Since the matter did not appear to be free from ambiguity on the basis of the affidavits before us, we decided to examine the factual aspects more thoroughly by examining the other available materials on the records of the Union of India, and accordingly the learned counsel for the respondent got the relevant departmental files called. Two further affidavits were also filed along with photostat copies of a large number of documents, which we examined at some length with the aid of the learned advocates for both sides. From the materials produced before us it is fully established that there has not been any arbitrariness whatsover on the part of the respondent in filling up the vacancies in question or the other vacancies referred to by the learned counsel for the appellant. The process of final selection had to be closed at some stage as was actually done. A decision in this regard was accordingly taken and the process for further allotment to any vacancy arising later was closed. Mr. Goswami relied upon certain appointments actually made subsequent to this stage and urged that by those dates the further vacancies in the Indian Police Service had arisen to which the appellant and the other successful candidates should have been adjusted. We do not find any merit in this contention. It is not material if in pursuance of a decision already taken before closing the process of final selection, the formal appointments were concluded later. What is relevant is to see as to when the process of final selection was closed. Mere completing the formalities cannot be of any help to the appellant. We do not consider it necessary to mention all the details in this connection available from the large number of documents which we closely examined during the hearing at considerable length and do not 575 have any hesitation in rejecting the argument of the learned counsel in this regard based on the factual aspect.

11. So far the decision to adopt a different policy with respect to filling up of the reserved vacancies is concerned the same is justified on account of the special circumstances mentioned in the respondent's affidavits. The decision to depart from the confirmed policy was taken after a consideration by the authorities of the position in regard to unavailability of qualified candidates from year to year adversely affecting the desired strength of the reserved candidates in the services and cannot be condemned on the grounds of arbitrariness and illegal discrimination.

12. In the result, we do not find any merit in the appeal which is accordingly dismissed, but, in the circumstances, without costs.

N.P.V.					  Appeal dismissed.
						       576