SC 1612, the issue was considered by the Constitution Bench and it
was held as follows:
“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”.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
[C.R.]
PRESENT:
MR.JUSTICE P.N.RAVINDRAN
&
MR.JUSTICE R. NARAYANA PISHARADI
27TH DAY OF MARCH 2018
WA.No. 342 of 2016 IN WPC. 8905/2012
G.RADHAKRISHNAN,
Vs
KERALA STATE ROAD TRANSPORT CORPORATION,
The appellants are persons appointed as Tyre Inspector and
Conductor respectively in the Kerala State Road Transport
Corporation (hereinafter referred to as 'the Corporation'). Their
aspiration was to get appointment to the post of Legal Assistant in
the Corporation. Their names were included in a rank list prepared
by the Corporation for appointment to that post. Before appointing
the appellants, the Corporation terminated the period of validity of
the rank list. They filed W.P.(C) No.8905 of 2012 against the
Corporation challenging that decision but they could not succeed.
They have now come up in appeal.
2. The Corporation issued Ext.P1 circular memorandum dated
15.12.2006 inviting applications from qualified employees in the
active service of the Corporation for selection and appointment to
the post of Legal Assistant. The appellants participated in the
selection process conducted pursuant to Ext.P1 notification. Ext.P2
rank list dated 25.01.2007 was published by the Corporation after
the selection. The names of the appellants figured as serial Nos. 5
and 8 in Ext.P2 rank list.
3. As per Ext.P3 memorandum dated 25.01.2007 issued by the
Corporation, four persons who had secured the first four ranks in the
selection process and ranked as Sl.Nos. 1 to 4, were appointed as
Legal Assistants by the Corporation. Thereafter, as per Ext.P4
memorandum dated 13.2.2007, the appellants and another person
were posted temporarily on working arrangement to attend to the
duties of Assistants, without any change in their designation. The
posting of the appellants thus made was purely temporary.
4. As per Ext.P9 order dated 12.5.2011, two Legal Assistants
(who were serial Nos.1 and 3 in Ext.P2 rank list) were promoted to
the post of Deputy Law Officer. By that time, on 31.3.2011, the
second person in Ext.P2 rank list had retired from service. The fourth
person in Ext.P2 rank list had gone on deputation to another
department in the year 2010 but subsequently she was reverted
back to the Corporation.
5. Meanwhile, the appellants made Ext.P10 representation
dated 3.4.2009 to the Corporation requesting that they may be
appointed to the post of Legal Assistant in the vacancies which
would arise on account of the promotions to be made to the post of
Deputy Law Officer from the Legal Assistants. The first appellant
made Ext.P11 representation dated 15.12.2010 to the Corporation
for appointing him to the post of Legal Assistant. The appellants
made Ext.P13 representation dated 17.5.2011 to the Corporation
requesting that they may be appointed as Legal Assistants. The
appellants and another person also made Ext.P12 representation
dated 13.6.2011 to the Corporation for the same relief. The
appellants also filed W.P.(C) No.19995 of 2011 before this Court and
as per Ext.P14 judgment in the writ petition, the Managing Director
of the Corporation was directed to consider and pass appropriate
orders on the representation made by them. As per Ext.P16
memorandum dated 5.3.2012, the Corporation rejected the claim
made by the appellants for appointment to the post of Legal
Assistant. The Corporation took the stand that the period of validity
of Ext.P2 rank list expired on completion of the period of three years
from the date of its publication. The Corporation also took notice of
the fact that new regulations for appointment to various posts in the
Law Branch have come into force with effect from 7.10.2011 and
that the Corporation has reported the existing four vacancies of
Legal Assistants to the Kerala Public Service Commission. On receipt
of Ext.P16 memorandum, the appellants filed W.P.(C) No.8905 of
2012 for quashing Ext.P16 memorandum and also Ext.P17
regulations and to direct the Corporation to make appointment to
the post of Legal Assistant from the persons included in Ext.P2 rank
list. The appellants also claimed regularisation in the post of Legal
Assistant.
6. The Corporation filed a counter affidavit in the writ petition
contending that the appellants were posted only on working
arrangement to attend to the duties of Assistants without any
change in their pay and designation and they are not entitled to be
regularised in the post of Legal Assistant. The Corporation also
contended that there were only four vacancies at the time of Ext.P1
notification and all the four vacancies were filled up by appointing
persons from Ext.P2 rank list. The Corporation further contended
that the rank list could not have been kept alive for an indefinite
period and Ext.P17 regulations regarding appointment to various
posts have come into force and thereafter appointments could be
made only as per the regulations and that steps have been taken to
fill up the existing four vacancies by reporting the vacancies to the
Kerala Public Service Commission.
7. The learned single Judge found that there is no merit in the
claim of the appellants for regularisation in the post of Legal
Assistant and also for appointment to that post from Ext.P2 rank list
and accordingly, dismissed the writ petition. Aggrieved by the
judgment of the learned single Judge, the writ petitioners have filed
this appeal.
8. We have heard the learned counsel for the appellants and
also the learned Standing Counsel for the Corporation.
9. Learned counsel for the appellants contended that the
names of the appellants are included in Ext.P2 rank list and
therefore, they have got a right to get appointment against the
vacancies that arose during the period of validity of the rank list.
Learned counsel would contend that Ext.P1 notification did not
specify the number of vacancies to which appointment shall be
made. It is also contended that the period of validity of the rank list
is not stated either in Ext.P1 notification or in Ext.P2 rank list and
therefore, all the persons whose names are included in the rank list,
are entitled to get appointment. Learned counsel would further
contend that the new regulations for recruitment came into force
only after vacancies arose in the post of Legal Assistant and
therefore, such vacancies have to be filled up as per the rules which
were then in existence and not according to the new regulations.
10. Per contra, learned Standing Counsel for the Corporation
contended that merely for the reason that the names of the
appellants are included in Ext.P2 rank list they have got no right to
get appointment. Learned Standing Counsel further contended that
the period of validity of the rank list came to an end on the expiry of
the period of three years from the date of its publication and since
new regulations have come into force, the Corporation is bound to
fill up the vacancies in accordance with the procedure prescribed by
such regulations.
11. At the outset, it is to be noted that selection to the post of
Legal Assistant as per Ext.P1 notification was made from all
categories of employees in the Corporation. Earlier, the selection
was being made only from the ministerial staff in the Corporation.
After the publication of Ext.P2 rank list, some of the candidates from
the ministerial staff, who got only a lower rank in the selection
process, challenged the selection by filing writ petitions before this
Court. Though a learned single Judge of this Court allowed the writ
petitions as per the judgment dated 28.06.2010, in Writ Appeal
No.90 of 2010 and connected appeals, the Division Bench of this
Court set aside the decision of the single Judge and held that the
selection process conducted as per Ext.P1 notification and the rank
list published as Ext.P2 are valid.
12. The names of the appellants are included as serial Nos.
5 and 8 in Ext.P2 rank list. Admittedly, the first four persons in that
rank list were appointed as Legal Assistants in the four vacancies
that existed at the time of Ext.P1 notification. Thereafter, four
vacancies in the post of Legal Assistant arose, one on 31.03.2011 on
account of retirement, two on 12.05.2011 and one on 02.04.2015 on
account of promotion. Ext.P17 regulations for recruitment to various
posts in the Law Branch of the Corporation came into force only on
07.10.2011. Therefore, long before the new regulations came into
force, three vacancies had arisen in the post of Legal Assistant.
13. Learned single Judge has rightly negatived the claim of the
appellants that they are entitled to get regularisation in the post of
Legal Assistant. It is to be noted that as per Ext.P4 memorandum
dated 13.2.2007, the appellants were not appointed to the post of
Legal Assistant on temporary basis. They were only temporarily
posted to some of the sections on working arrangement to attend to
the duties of Assistants, without any change in their pay or
designation. It is specifically stated that in Ext.P4 memorandum that
the posting of the appellants so made is purely temporary and on
working arrangement and that they will not be eligible to get the
salary of Assistants. Since the appellants were attending to the
duties of Legal Assistants only on the basis of a working
arrangement their plea that they are entitled to get regularisation in
that post cannot be accepted.
14. Now, we shall consider the right of the appellants to get
appointment on the ground that their names are included in Ext.P2
rank list. It is well settled that the inclusion of the name of a person
in the rank list/select list does not confer any right upon that person
to get appointment.
15. In Shankarsan Dash v. Union of India : AIR 1991
SC 1612, the issue was considered by the Constitution Bench and it
was held as follows:
“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”.
16. The principle that persons merely selected for a post do not thereby acquire a right to be appointed to such post is well established by judicial precedents. Even if vacancies exist, it is open to the concerned authority to decide how many appointments should be made. A decision on the part of an authority to fill up the existing vacancies or not is within its domain. In the absence of discrimination or arbitrariness, a writ court ordinarily would not interfere in such matters (See Deepa Keyes v. Kerala State Electricity Board and another: (2007) 6 SCC 194). The process for selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus (See Jatinder Kumar v. State of Punjab : AIR 1984 SC 1850). A candidate who finds a place in the select list for appointment to a civil post does not acquire an indefeasible right to be appointed to such post in the absence of any specific rule entitling him for such appointment. He could be aggrieved by his non-appointment only when the administration does so either arbitrarily or for no bona fide reasons (Union Territory of Chandigarh v. Dilbagh Singh : AIR 1993 SC 796). A person who is selected, does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment. By itself, it does not amount to selection or create a vested right to be appointed unless relevant service rules provide to the contrary (State of Bihar v. Secretariat Assistant Successful Examinees Union : AIR 1994 SC 736). Mere entry in the select list of the name of a candidate does not give him the right to be appointed. It may happen that the authority concerned may not fill up any vacancies. In such a case, a candidate, even if he is the first in the list, will not have a right to be appointed. Existence of vacancies does not give a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the authority concerned to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed (State of Haryana v. Subash Chander Marwaha: AIR 1973 SC 2216). Select list cannot be treated as a reservoir for the purpose of appointments so that vacancies could be filled up taking the names from that list as and when it is so required.
17. Therefore, merely for the reason that the names of the appellants were included in Ext.P2 rank list, they have got no right to get appointment to the post of Legal Assistant.
18. Ext.P1 notification does not state the period of validity of the select list that would be prepared. Ext.P2 rank list does not mention the period of its validity. Therefore, learned counsel for the appellants would contend that the rank list shall remain alive till all the persons included in it are appointed.
19. True, Ext.P1 notification does not state the period of validity of the select list that would be prepared. True, Ext.P2 rank list does not mention its period of validity. Learned standing counsel for the Corporation has also not pointed out any rule or provision which prescribes the period of validity of Ext.P2 rank list. But, a select list cannot remain in force forever. There shall be a time limit. There has to be a time limit. The object of selection is to find out the best talent for the service. If the period of the select list is not limited, it would remain in force for indefinite length of time, may be for several years. Then other persons who become eligible during the period would be deprived of their right to compete and to get appointment. The employer would also be denied opportunity to select the best talent available.
Therefore, the action of the Corporation limiting the period of validity of Ext.P2 rank list for a period of three years from the date of its publication in parity with the period of validity of the rank lists prepared and published by the Kerala Public Service Commission, cannot be found fault with. Such action on the part of the Corporation cannot be found to be arbitrary or malafide. Authority for this proposition can be had from the decision of this Court inNeelakanda Kurup v. State of Kerala (MANU/KE/0537/1996).
20. In Mohanan v. State of Kerala : AIR 1997 SC 1896, it has been held that a long waiting list cannot be kept in infinitum in view of the principle "infinitum in jure reprobatur" (that which is infinite or endless is reprehensible in law). In the instant case, there is no dispute with regard to the fact that at the time of Ext.P1 notification and on the date of publication of Ext.P2 rank list, there were only four vacancies of Legal Assistants. Though the total number of vacancies to be filled up was not specified in Ext.P1 notification, the four vacancies which existed at the time of the selection notification were filled up from that list. The list cannot be treated as valid forever. The list should not have been allowed to remain in force beyond a reasonable period. Hence, it would be improper and unreasonable to direct the Corporation to treat the select list as valid until the same gets exhausted.
21. Ext.P1 notification does not mention the number of vacancies to which selection shall be made. However, the affidavit filed by the Corporation shows that only four vacancies arose during the period of three years from the date of publication of Ext.P2 rank list and the four vacancies were filled by appointing the persons included in Ext.P2 rank list.
22. Learned counsel for the appellants pointed out that three vacancies of Legal Assistants had arisen long before Ext.P17 regulations came into force and the vacancies which existed prior to Ext.P17 regulations have to be filled up by selecting persons from Ext.P2 rank list or by adopting the procedure which was in existence at the time when the vacancies arose. Learned counsel for the appellants would rely upon the decision in Arjun Singh Rathore v. B.N.Chaturvedi : (2007) 11 SCC 605 in support of the contention that the vacancies which arose prior to the enactment of the new regulations regarding recruitment shall be filled up in accordance with the procedure which existed at the time when the vacancies arose.
23. The aforesaid contention cannot be accepted for the reason that the validity of Ext.P2 rank list had expired long before the occurrence of the three vacancies in the year 2011. The decision referred to above and relied upon by the appellants has no application to the facts of the instant case. The decision of the Apex Court dealt with promotion of persons in service. Here, it is not a case of promotion. Since new regulations regarding recruitment have come into force, the Corporation has to conduct recruitment in accordance with the procedure prescribed therein. If the selection process had already been commenced in accordance with the procedure which existed earlier, then it should not have been abandoned midway and selection could not have been made as per the new regulations. That is not the case here.
24. A writ of mandamus can be issued by the court only when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the writ petition. In Government of Orissa v. Haraprasad Das (AIR 1998 SC 375), it has been observed that it is not for the court or the tribunal to direct the Government to make further appointments from the rank list by treating it as in force. If the authority concerned decides not to make further appointments for a valid reason, it cannot be said that it has acted arbitrarily by not appointing those whose names are included in the selection list. Whether to fill up a post or not is a policy decision and unless it is shown to be arbitrary it is not open to the Court to interfere with such decision of the authority and direct it to make further appointments.
25. Learned counsel for the appellants would contend that since the names of the appellants were included in Ext.P2 rank list, they had a legitimate expectation that they would be appointed to the post of Legal Assistant. A legitimate expectation is not the same thing as an anticipation. It is distinct and different from a desire and hope. It is based on a right. In the absence of any right, there can be no basis for legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure.
26. The discussion above leads to the conclusion that the appellants are not entitled to get any of the reliefs prayed for in the writ petition. We see no good ground to interfere with the judgment of the learned single Judge.
Consequently, the appeal fails and it is dismissed. No costs.
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