Holding

When a large number of vacancies remain and a selection process—including a statutory 20% extra replacement panel—has been completed, the State cannot arbitrarily refuse to appoint those candidates and must offer them appointment.

Summary

The South East Central Railway advertised 5,798 Group‑D posts in 2010 and, per a 2008 Railway Board instruction, prepared a select list with a 20% extra replacement panel. The appellants were on this extra panel, but the Railway did not appoint any of them despite 624 vacancies remaining. The appellants sought mandamus directing appointment, arguing the Railway’s refusal was arbitrary and violated Article 14. The Supreme Court held that while selection does not create a vested right, the State cannot arbitrarily refuse to fill vacancies when a selection process, including a statutory extra panel, has been completed; it must give a non‑arbitrary reason for non‑appointment. Consequently, the Court set aside the CAT and High Court orders and directed the Railway to offer appointment to the eligible appellants, with specific seniority and pay consequences. A dissenting opinion argued the Railway retained discretion to not fill the posts.

Issues considered

Whether candidates on the 20% extra replacement panel have a legal right to appointment under the 2008 Railway Board instruction.
Whether the Railway's refusal to fill the remaining vacancies without a cogent reason violates Article 14 of the Constitution.
Whether the expiry of the select panel’s validity bars appointment of the appellants.
Whether the State may lawfully decline to fill advertised vacancies and the limits of judicial review in such matters.
Whether the courts can issue mandamus directing appointment of candidates from a waiting list.

Legislation cited

Administrative Tribunal Act, 1985s. 19

Subjects

appointmentservice lawRailway recruitmentArticle 14selection panelreplacement paneljudicial reviewadministrative discretionmandamusnon‑arbitrary

Judgment

[2018] 14 S.C.R. 947 947

DINESH KUMAR KASHYAP & ORS. ETC. A
v.
SOUTH EAST CENTRAL RAILWAY & ORS. ETC.
(Civil Appeal Nos. 11360-11363 of 2018)
NOVEMBER 27, 2018
B
[KURIAN JOSEPH, DEEPAK GUPTA AND
HEMANT GUPTA, JJ.]
Service Law – Appointment – Respondent No.1-Railways
issued advertisement inviting applications for filling up Group-D
posts for General Category in its Raipur, Bilaspur and Nagpur
C
divisions and workshops – According to the appellants, as per the
existing instructions dated 02.07.2008 the select list was to be
prepared with 20% extra candidates in the replacement list –
Appellants fall in the category of extra 20% – Claim of the appellants
before CAT that the Respondent No.1 be directed to fill in the unfilled
vacancies in the General Category from this list of 20% candidates D
– Rejected – Writ petition filed by the appellants, also rejected –
Held: Per Deepak Gupta, J. (for himself and Kurian Joseph, J.) It
is true, that mere selection does not give any vested right to the
selected candidate to be appointed – However, at the same time
when a large number of posts are lying vacant and selection process
E
has been followed, then the employer must satisfy the court as to
why it did not resort to and appoint the selected candidates, even if
they are from the replacement panel – When the employer is the
State it is bound to act according to Art.14 – There is no indication
in the pleadings that the vacancies were not to be filled up –
Respondent No.1 failed to give any cogent reason to justify its action F
of not calling for candidates from the replacement list of extra 20%
candidates – Respondent No.1 to offer appointment to the eligible
appellants – Directions issued – [Per Hemant Gupta, J. (Dissenting)]
State has a right not to appoint candidates even if they are in merit
list – Appellants do not possess indefeasible right of appointment –
G
It is not the case, that any candidate lower in merit has been
appointed or the appointments have been made by pick and choose
method ignoring merit – Stand of Railways that the requirement to
fill up 624 vacant posts was not felt cannot be said to be arbitrary
– No reason to interfere in the decision-making process of the
Railways – Constitution of India – Art.14. H
947
948 SUPREME COURT REPORTS [2018] 14 S.C.R.

A Disposing of the appeals, the Court
HELD: Per Deepak Gupta, J. (for himself and
Kurian Joseph, J.)
1.1 It is true, that mere selection does not give any vested
right to the selected candidate to be appointed. At the same
B time when a large number of posts are lying vacant and selection
process has been followed then the employer must satisfy the
court as to why it did not resort to and appoint the selected
candidates, even if they are from the replacement panel. The
State must give some justifiable, non-arbitrary reason for not filling
C up the post. When the employer is the State it is bound to act
according to Article 14 of the Constitution. It cannot without any
rhyme or reason decide not to fill up the post. It must give some
plausible reason for not filling up the posts. The courts would
normally not question the justification but the justification
must be reasonable and should not be an arbitrary, capricious
D or 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 vacancies
were not to be filled up. The fact that three simultaneous selection
processes were undertaken, itself proves that the Respondent
E No. 1 wanted to fill up all the posts and did not want any vacancies
to be left unfilled. This negates the plea of the Respondent No. 1
that it was not necessary to fill up the vacant posts. The appellants
herein who approached the CAT and the High Court with
promptitude cannot suffer only because the matter was pending
F in Court. The judgment of the High Court and CAT,
Jabalpur Bench are set aside. Directions issued. The
Respondent 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]

G R.S. Mittal v. Union of India (UOI) 1995 (2) Suppl. SCC
230 : [1995] 2 SCR 1127 – relied on.
Per Hemant Gupta, J. (Dissenting)
1.1 In the present case, the appellants were called in for
the verification of documents as extra candidates to replace the
H candidates selected who do not join for one or the other reason.
DINESH KUMAR KASHYAP v. SOUTH EAST CENTRAL 949
RAILWAY

Such candidates were called to meet out the necessity to fill up of A
posts if the meritorious selected candidates do not join. The State
has a right not to appoint candidates even if they are in merit list.
The appellants do not possess indefeasible right of appointment.
The reason given by the Railways in the counter affidavit is that
the requirement to fill 624 posts was not felt in pursuance of an
B
advertisement in question as there was two simultaneous selection
processes in which 2839 candidates were appointed. Such reason
cannot be said to be wholly arbitrary which warrant a mandate to
the respondents to appoint the appellants who are not in merit
list but at best in the waiting list. The State has right not to fill up
any vacancy advertised. The stand that the requirement to fill up C
624 vacant posts was not felt cannot be said to be arbitrary
warranting a mandamus to appoint the appellants. The State
cannot be directed to appoint candidates, when it does not require
the posts to be filled up. The decision not to fill up vacancies has
been taken for appropriate reasons and is neither arbitrary nor
D
discriminatory. [Para 18][965-E-H; 966-A-B]
1.2 In exercise of power of Judicial Review, this Court is
not to substitute the decision of the Railways and to direct
candidates in the waiting list to be appointed. The currency of
the panel published in the month of March, 2014 is for a period
of two years. Since the validity of the select panel had come to an E
end on the efflux of time, therefore, there cannot be any order to
appoint the persons from such select list prepared wayback in
the year 2014 in pursuance to the advertisement issued on
15.12.2010. Such panel cannot be a perennial source of
appointment. There is no reason to interfere in the F
decision-making process of the Railways, so as not to appoint
the appellants against Group D posts advertised on
15.12.2010. Consequently, there is no illegality in the
order passed by the Tribunal and the High Court. [Paras 20, 22-
24][968-B; 969-A-C]
G
Shankarsan Dash v. Union of India (1991) 3 SCC
47 : [1991] 2 SCR 567 – followed.
State of Haryana v. Subash Chander Marwaha (1974)
3 SCC 220 : [1974] 1 SCR 165 ; Jatinder Kumar v.
H
950 SUPREME COURT REPORTS [2018] 14 S.C.R.

A State 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 of
Punjab (2016) 6 SCC 532 : [2016] 4 SCR 439 – relied
on.
B R.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 Kurian
C Joseph, J.)
[1995] 2 SCR 1127 relied on Para 6
In the Judgment of Hemant Gupta, J.
[1995] 2 SCR 1127 referred to Para 8
D
[1974] 1 SCR 165 relied on Para 11
[1985] 1 SCR 899 relied on Para 12
[1991] 2 SCR 567 followed Para 13
[2009] 1 SCR 196 relied on Para 14
E
[2016] 4 SCR 439 relied on Para 15
[2006] 1 SCR 261 referred to Para 17
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 11360-
11363 of 2018.
F
From the Judgment and Order dated 27.03.2017 of the High Court
of Chhattisgarh at Bilaspur in Writ Petition No. 1459 of 2017 and order
dated 05.08.2015 in Writ Petition Nos. 1965 of 2015, 2348 of 2015 and
2450 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,
H Advs. for the Respondents.
DINESH KUMAR KASHYAP v. SOUTH EAST CENTRAL 951
RAILWAY

The Judgments* of the Court were delivered by A
DEEPAK GUPTA, J. 1. Leave granted.
2. Respondent No.1, South East Central Railway (for short the
SECR) issued an advertisement on 15.12.2010 inviting applications for
filling up 5798 posts in the pay scale of Rs.5200-Rs. 20,200 + Grade Pay
of Rs.1800/- in Raipur, Bilaspur and Nagpur divisions and workshops. B
The claim of the original writ petitioners who filed applications before
the Central Administrative Tribunal (for short CAT) was that as per the
existing instructions the select list was prepared with 20% extra
candidates. Therefore, the result of 6995 candidates was declared who
were successful. The appellants fall in the category of extra 20%. The
SECR did not make the appointments from these 20% extra candidates C
though 624 posts remained unfilled in the general category itself. The
appellants who fall in the 20% category of extra candidates filed
applications before the CAT praying that the SECR be directed to fill in
the unfilled vacancies from this list of 20% candidates. This application
was rejected by the Tribunal. The writ petition filed by the appellants D
was also rejected. Hence these appeals.
3. To understand the issue at hand it would be pertinent to refer to
the instructions relied upon by the appellants. The relevant portion of
the instruction reads as follows :-
“…….. E
3. The issue has been examined and it has now been decided
by the Board that the number of candidates called for document
verification shall be 20% over and above the number of vacancies.
4. This shall, however, be done with the following proviso.
(i) It has to be brought out clearly in the Call Letter to the F
candidate that the purpose of calling 20% candidates over
and above the number of vacancies at the time of document
verification is primarily to avoid shortfall in the panel and
that merely calling a candidate for document verification does
not, in any way, entitle him/her to an appointment in the
G
railways.
(ii) Even where the number of candidates available after
document verification exceeds the number of vacancies,
the panel finalized by RRC (Railway Recruitment Cell)
*
One Judgment was delivered by Deepak Gupta, J. for himself and on behalf of Kurian
Joseph, J. The other Judgment was delivered by Hemant Gupta, J. H
952 SUPREME COURT REPORTS [2018] 14 S.C.R.

A shall be equal to the number of vacancies only. In case, the
Railway administration after giving stipulated joining time to
the selected candidates, certifies that certain number of
candidates have not turned up within the specific period,
another panel equal to the number of candidates finally not
turning up for taking appointment will be supplied by RC.
B
Before calling for replacement in-lieu of the candidates finally
not turning up for taking appointment CPO shall personally
satisfy himself that the procedure for cancellation of the offer
of appointment to the originally empanelled candidates has
been strictly followed. Under no circumstances, the number
C of candidates covered in the original as well as replacement
panels shall exceed the number of vacancies indented by
the railway; and
(iii) Replacement panels shall include only such number of
reserved / un-reserved candidates as have not turned up as
D per original panel.
…….”
4. From a reading of the order passed by the CAT it is apparent
that the stand taken by the SECR before the Tribunal was that the purpose
of declaring the result of 20% extra candidates is to ensure that in the
E eventuality of some of the candidates who are higher up in merit not
turning up for document verification or being declared unfit in medical
examination the unfilled posts can be filled from the reserved panel. It
was the stand of the SECR that the purpose of calling 20% candidates
was to primarily avoid shortfall in the vacancies filled. It was also
F submitted that merely calling the candidate for document verification
does not give any vested right to the candidate to be appointed. It was
further submitted that after 10.01.2014 the system of maintaining
replacement panels has been discontinued. According to the Tribunal
the appellants had no right to be appointed.
5. Aggrieved, the appellants approached the High Court of
G
Chhattisgarh in which they also took another plea that persons from the
20% extra replacement panel had been offered appointment by the
Railways in many other zones and it was only in the 3 divisions of Bilaspur,
Raipur and Nagpur that this was not done. The writ petition was
dismissed holding that the appellants herein had no right and also that
H
DINESH KUMAR KASHYAP v. SOUTH EAST CENTRAL 953
RAILWAY [DEEPAK GUPTA, J.]

merely because some appointments have been made in other zones from A
the replacement panel, it would not create any right in the appellants.
6. The main issue which arises before us is whether the SECR
could have ignored the 20% extra panel despite the letter dated 02.07.2008
without giving any cogent reason for the same. No doubt, it is true, that
mere selection does not give any vested right to the selected candidate B
to be appointed. At the same time when a large number of posts are
lying vacant and selection process has been followed then the employer
must satisfy the court as to why it did not resort to and appoint the
selected candidates, even if they are from the replacement panel. Just
because discretion is vested in the authority, it does not mean that this
discretion can be exercised arbitrarily. No doubt, it is not incumbent C
upon the employer to fill all the posts but it must give reasons and satisfy
the court that it had some grounds for not appointing the candidates who
found place in the replacement panel. In this behalf we may make
reference to the judgment of this Court in R.S. Mittal vs. Union of
India (UOI)1, wherein it was held as follows:- D
10. ……………………..
.…………………….
It is no doubt correct that a person on the select panel has no
vested right to be appointed to the post for which he has been E
selected. He has a right to be considered for appointment. But at
the same time, the appointing authority cannot ignore the select
panel or decline to make the appointment on its whims. When a
person has been selected by the Selection Board and there is a
vacancy which can be offered to him, keeping in view his merit
position, then, ordinarily, there is no justification to ignore him for F
appointment. There has to be a justifiable reason to decline to
appoint a person who is on the select panel. In the present case,
there has been a mere inaction on the part of the Government.
No reason whatsoever, not to talk of a justifiable reason, was
given as to why the appointments were not offered to the G
candidates expeditiously and in accordance with law. The
appointment should have been offered to Mr Murgad within a
reasonable time of availability of the vacancy and thereafter to
the next candidate. The Central Government’s approach in this
case was wholly unjustified.”
1
(1995) Suppl. 2 SCC 230 H
954 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 7. Our country is governed by the rule of law. Arbitrariness is an
anathema to the rule of law. When an employer invites applications for
filling up a large number of posts, a large number of unemployed youth
apply for the same. They spend time in filling the form and pay the
application fees. Thereafter, they spend time to prepare for the
examination. They spend time and money to travel to the place where
B
written test is held. If they qualify the written test they have to again
travel to appear for the interview and medical examination etc. Those
who are successful and declared to be passed have a reasonable
expectation that they will be appointed. No doubt, as pointed out above,
this is not a vested right. However, the State must give some justifiable,
C non-arbitrary reason for not filling up the post. When the employer is
the State it is bound to act according to Article 14 of the Constitution. It
cannot without any rhyme or reason decide not to fill up the post. It
must give some plausible reason for not filling up the posts. The courts
would normally not question the justification but the justification must be
reasonable and should not be an arbitrary, capricious or whimsical exercise
D
of discretion vested in the State. It is in the light of these principles that
we need to examine the contentions of the SECR.
8. On behalf of the SECR it has been contended that before calling
for replacement candidates the CPO was to satisfy himself that the
procedure for cancellation of the order of appointment of the original
E empanelled candidates has been strictly followed. It is urged that since
this was not done the appellants could not be appointed. This argument
holds no merit. There is no indication in the pleadings that the vacancies
were not to be filled up. If an official of the Respondent No. 1 fails to do
his duty the appellants cannot suffer for the same. They are not at fault.
F 9. On behalf of the respondents it was urged before us that after
the selection process in question 2 more selection processes were started
in 2012 and 2013. Resultantly, three recruitment cycles were running
concurrently and, therefore, the vacancies were filled up in the
subsequent selections. This argument deserves to be rejected since it
G was not even raised before the Tribunal. Furthermore, the rights of the
appellants who had appeared in the selection pursuant to the notification
of 2010 could not be taken away by the selection processes started
much later. They cannot be made to suffer for the delays on the part of
the SECR.

H
DINESH KUMAR KASHYAP v. SOUTH EAST CENTRAL 955
RAILWAY [DEEPAK GUPTA, J.]

10. The fact that three simultaneous selection processes were A
undertaken, itself proves that the Respondent No. 1 wanted to fill up all
the posts and did not want any vacancies to be left unfilled. This negates
the plea of the Respondent No. 1 that it was not necessary to fill up the
vacant posts.
11. It has been urged before us that the validity of the panel was B
only for two years and since the last merit list was published for March
2014, validity of the list has expired in March 2016. This submission is
only to be rejected. The appellants herein who approached the CAT
and the High Court with promptitude cannot suffer only because the
matter was pending in Court.
C
12. Another submission raised on behalf of the SECR is that the
appellants have obtained lower marks than the cut-offs prescribed in the
selection processes held in the year 2012 and 2013. This amounts to
comparing apples to oranges. Every selection process has a different
examination with different level of assessment. By no stretch of
imagination can comparison be made between the three different D
selection processes.
13. Another argument raised is that recruitment policy is an
executive decision and the courts should not question the efficacy of
such policy. Neither the appellants nor this Court is questioning the
efficacy of the policy contained in the letter dated 02.07.2008. All that E
has been done is to ensure implementation of the policy by the Respondent
No. 1, especially when it has failed to give any cogent reason to justify
its action of not calling for candidates from the replacement list of extra
20% candidates.
14. In view of the above, the appeals are allowed. The judgment F
of the High Court and CAT, Jabalpur Bench are set aside. The appellants
are entitled to the benefit of the letter dated 02.07.2008. While allowing
the appeals we issue the following directions:-
(i) The benefit of this judgment shall only be available to those
appellants who had approached the CAT; G
(ii) The appellants shall not be entitled to any back wages;
(iii) The appellants shall, for the purpose of seniority and fixation
of pay be placed immediately above the first selected candidates
of the selection process which commenced in the year 2012 and,
H
956 SUPREME COURT REPORTS [2018] 14 S.C.R.

A immediately below the candidates of the selection list of 2010 in
order of seniority;
(iv) The appellants shall be entitled to notional benefits from
the date of such deemed appointment only for the purposes of
fixation of pay and seniority.
B 15. The Respondent No. 1 is directed to comply with the judgment
and offer appointment to the eligible appellants within a period of 3 months
from today.
16. All pending application(s), shall also stand disposed of in the
aforesaid terms.
C
HEMANT GUPTA, J.
1. I have gone through the Judgment authored by my learned
brother Justice Deepak Gupta. Respectfully, I am not able to agree with
the views expressed therein. My views are given hereunder:
D 2. The appellants are aspirants for appointment to the Group-D
posts for which an advertisement was issued by the South East Central
Railways for 5540 General category posts on 15.12.2010. The
advertisement contemplated that 20% of the candidates would be called
for documents verification as the extra candidates in terms of the
E instructions issued by the Railway Board on 02.07.2008 for placing the
candidates in the extra list. The relevant conditions contained in the
aforesaid circular read as under:
“3. The issue has been examined and it has now been decided
by the Board that the number of candidates called for document
F verification shall be 20% over and above the number of vacancies.
4. This shall, however, be done with the following proviso.
(i) It has to be brought out clearly in the Call Letter to the candidate
that the purpose of calling 20% candidates over and above the
number of vacancies at the time of document verification is
G primarily to avoid shortfall in the panel and that merely calling a
candidate for document verification does not, in any way, entitle
him/her to an appointment in the railways.
(ii) Even where the number of candidates available after
document verification exceeds the number of vacancies, the panel
H finalized by RRC (Railway Recruitment Cell) shall be equal to
DINESH KUMAR KASHYAP v. SOUTH EAST CENTRAL 957
RAILWAY [HEMANT GUPTA, J.]

number of vacancies only. In case, the Railway Administration A
after giving stipulated joining time to the selected candidates,
certifies that certain number of candidates have not turned up
within the specified period, another panel equal to the number of
candidates finally not turning up for taking appointment will be
supplied by RRC. Before calling for replacement in-lieu of the
B
candidates finally not turning up for taking appointment CPO shall
personally satisfy himself that the procedure for cancellation of
the offer of appointment to the originally empanelled candidates
has been strictly followed. Under no circumstances, the number
of candidates covered in the original as well as replacement panels
shall exceed the number of the vacancies indented by the railway; C
and
(iii) Replacement panels shall include only such number of
reserved/un-reserved candidates as have not turned up as per
original panel.”
(emphasis supplied) D

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

4. As per the information contained in Annexure P-2, as many as
509775 applications were received in response to the advertisement issued
on 15.12.2010 and out of which 162229 candidates appeared for the
written test. After qualifying the written test, 10380 general candidates
were called for physical efficiency test. Since the appellants are general F
category candidates, number of the candidates from the other categories
called for physical efficiency test is not mentioned in the affidavit. The
cut off marks in the written test was 40%. As many as 7697 general
category candidates qualified in the physical efficiency test. The
percentage of cut off marks obtained for document verification in respect G
of the general category is 40.98%. The appointments against the posts
advertised were made on 11.3.2013; 9.7.2013 and in March 2014.
5. The appellants, who were not appointed against the Group-D
posts against the aforesaid advertisement process, filed Original
Applications under section 19 of the Administrative Tribunal Act, 1985
H
before the Central Administrative Tribunal, Jabalpur in the year 2014.
958 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 6. Such nine connected Original applications were dismissed by
the Tribunal on 13.02.2015 inter-alia, holding as under:
“The right of candidates in 20% extra list begins only after a
demand is made for replacement panel to Railway Recruitment
Cell after duly following aforesaid procedure. The procedure for
B working out requirement of replacement panel is not part of either
the employment notification or selection procedure. The right of
applicants for consideration starts only after certain appointment
orders of originally empanelled candidates are cancelled and
thereafter a demand is raised for replacement panel. Since no
demand has been made in view of the procedure specified in
C notification dated 2.07.2008 (Annexure R-4) no right for
consideration of the applicants has either acquiesced or been
infringed.”
7. The Writ Petition filed by the appellants before Chhattisgarh
High Court remained unsuccessful vide judgment dated 05.08.2015. The
D Court held as under:
“The only question for our consideration is that if the appellants
were not in the original list of selected candidates on higher merit
and were to be considered against non-joining vacancies or medical
disqualification of selected candidates, then the procedure
E prescribed in the Railway Board’s letter 02.07.2008 was required
to be followed by preparation of a replacement panel. The Tribunal
has arrived at a finding of fact that no process for initiation of the
procedure under letter dated 02.07.2008 was ever commenced
by the Respondents to fill up non-joining vacancies from any
F replacement panel. A candidate outside and beyond the merit list,
has no vested legal right to such appointment as a matter of right
because vacancies may exist. We do not find any reason to differ
with the conclusions arrived at by the Tribunal”.
8. Before this Court, learned counsel for the appellants relies upon
G the judgment reported as R.S. Mittal v. Union of India, 1995 Supp (2)
SCC 230, to contend that though the appellants have no vested right to
seek appointment but the respondents cannot act in arbitrary manner to
deny the benefit of right of appointment as the State has to act in a non-
discriminatory and non-arbitrary manner. Therefore, the denial of
appointment to the appellants is not sustainable. It is also argued that out
H of 5540 posts in the general category as many as 624 posts have remained
DINESH KUMAR KASHYAP v. SOUTH EAST CENTRAL 959
RAILWAY [HEMANT GUPTA, J.]

unfilled. Therefore, such posts could be very well filled up by the A
candidates who are in the category of replacement candidates (extra
list) such as the appellants.
9. In the counter affidavit, it has been pointed out that two separate
appointment processes were also initiated, one on 25.08.2012 to fill up
2017 posts of the general category and another on 14.12.2013 to fill up B
1195 general category posts. In the said selection processes, 2839
candidates have been empanelled as against 3212 posts advertised. Such
candidates have already joined. It is also averred that three recruitment
cycles i.e. one in respect of which appellants were the candidates and
the two other recruitment processes were almost running concurrently.
It is inter-alia, mentioned in the counter affidavit as under: C

“iii. In the instant case Replacement Panels were not issued
primarily as there was no demand for issue of Replacement Panels
from the Divisions/Units. While the Recruitment process to the
Employment Notification No. SECR/02/2010 was underway, with
the approval of Railway Board, two more Notifications under No. D
SECR/03/2012 dated 25.08.2012 for 2215 (198 Physically
Handicapped + 2017 Non-PH) posts and SECR/04/2013 dated
14.12.2013 for 1206 (11 Physically Handicapped + 1195 Non-
PH) posts were issue.
iv. Against the above two Employment Notifications, SECR/03/ E
2012 dated 25.08.2012 and SECR/04/2013 dated 14.12.2013, 1977
and 862 Non-PH candidates have been empanelled respectively.
As such a total of 2839 Non-PH candidates have been empanelled
against two subsequent cycles of Employment Notifications.
v. Regarding the claim of the appellants and similarly placed F
candidates (who are candidates falling in 20% extra candidates
zone against employment Notification No. SECR/02/2010) for issue
of replacement panels against around 600 candidates who did not
join, it is submitted that the effect of non-joining of 600 odd
candidates was not felt since in a short time margin 2839 Non- G
PH candidates were empanelled and the panels were
supplemented to the Divisions/Units.
vii. Hence it goes without saying that the 2839 empanelled
candidates against two subsequent employment notifications
SECR/03/2012 and SECR/04/2013, are far superior in merit as
H
960 SUPREME COURT REPORTS [2018] 14 S.C.R.

A compared to the appellants who are candidates falling in 20%
extra zone against employment notification No. SECR/02/2010.
viii. As mentioned above two more cycles of recruitments were
going on parallel to the Employment Notification No. SECR/02/
2010, the necessity of replacement panels was not felt and not
B asked for as such.”
10. In this factual basis, firstly, it needs to be examined as to what
is the status of the appellants who were called for document verification
over and above the number of posts advertised. The circular dated
02.07.2008 is to the effect that 20% candidates are to be called to avoid
C the shortfall in the panel and that merely calling a candidate for document
verification does not, in any way, entitle him/her to an appointment in the
railways. It is also contemplated that replacement panel shall include
only such number of reserved / unreserved candidates as have not turned
up as per original panel. Therefore, the 20% extra candidates were called
to substitute the candidates who do not report within the joining time
D granted to the selected candidates. Such candidates at best can be said
to be the candidates in the waiting list of the candidates to be called for
appointment if the selected candidates do not join for one or the other
reason.
11. The next question is as to whether a candidate acquires any
E right to appointment being in the merit list. Such question has been
examined in number of judgments time and again by this Court. In a
judgment reported as State of Haryana v. Subash Chander Marwaha,
(1974) 3 SCC 220, it has been held that the State has a right not to
appoint a candidate even if his name appears in the merit list. The Court
F held as under: -
“ 7. In the present case it appears that about 40 candidates had
passed the examination with the minimum score of 45%. Their
names were published in the Government Gazette as required by
Rule 10(1) already referred to. It is not disputed that the mere
G entry in this list of the name of candidate does not give him the
right to be appointed. The advertisement that there are 15
vacancies to be filled does not also give him a right to be appointed.
It may happen that the Government for financial or other
administrative reasons may not fill up any vacancies. In such a
case the candidates, even the first in the list, will not have a right
H to be appointed. The list is merely to help the State Government in
DINESH KUMAR KASHYAP v. SOUTH EAST CENTRAL 961
RAILWAY [HEMANT GUPTA, J.]

making the appointments showing which candidates have the A
minimum qualifications under the Rules. The stage for selection
for appointment comes thereafter, and it is not disputed that under
the Constitution it is the State Government alone which can make
the appointments. …..”
12. In a Judgment reported as Jatinder Kumar v. State of Punjab, B
(1985) 1 SCC 122, this Court held that the process for selection and
selection for the purpose of recruitment against anticipated vacancies
does not create a right to be appointed to the post which can be enforced
by a mandamus. The Court held as under: -
“ 12. …... This, however, does not clothe the appellants with any C
such right. They cannot claim as of right that the Government
must accept the recommendation of the Commission. If, however,
the vacancy is to be filled up, the Government has to make
appointment strictly adhering to the order of merit as recommended
by the Public Service Commission. It cannot disturb the order of
merit according to its own sweet will except for other good reasons D
viz. bad conduct or character. The Government also cannot appoint
a person whose name does not appear in the list. But it is open to
the Government to decide how many appointments will be made.
The process for selection and selection for the purpose of
recruitment against anticipated vacancies does not create a right E
to be appointed to the post which can be enforced by a mandamus.
We are supported in our view by the two earlier decisions of this
Court in A.N. D’Silva v. Union of India AIR 1962 SC 1130
and State of Haryana v. Subash Chander Marwaha (1974) 3
SCC 220. The contention of Mr Anthony to the contrary cannot
be accepted.” F

13. In Shankarsan Dash v. Union of India, (1991) 3 SCC 47, a
Constitution Bench of this Court held that the notification for an
appointment merely amounts to an invitation to qualified candidates to
apply for recruitment and on their selection, they do not acquire any
right to the post. It was held as under: G
“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 H
962 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 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
B
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
C in State of Haryana v. Subash Chander Marwaha (1974) 3
SCC 220, Neelima Shangla v. State of Haryana (1986) 4 SCC
268, or Jatindra Kumar v. State of Punjab (1985)1 SCC 122”.
14. In a Judgment reported as S.S. Balu v. State of Kerala,
(2009) 2 SCC 479, it was held that the State as an employer has a right
D to fill up all the posts or not to fill them up. A candidate will have no legal
right for claiming a writ in the nature of mandamus unless there is
discrimination or arbitrariness in regard to the filling up of the vacancies.
The Court held as under:
“12. There is another aspect of the matter which cannot also be
E lost sight of. A person does not acquire a legal right to be appointed
only because his name appears in the select list. (See Pitta Naveen
Kumar v. Raja Narasaiah Zangiti [(2006) 10 SCC 261. The State
as an employer has a right to fill up all the posts or not to fill them
up. Unless a discrimination is made in regard to the filling up of
the vacancies or an arbitrariness is committed, the candidate
F concerned will have no legal right for obtaining a writ of or in the
nature of mandamus. (See Batiarani Gramiya Bank v. Pallab
Kumar (2004) 9 SCC 100. In Shankarsan Dash v. Union of
India (1991) 3 SCC 47 a Constitution Bench of this Court held:
(SCC pp. 50-51, para 7)
G “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
H qualified candidates to apply for recruitment and on their
DINESH KUMAR KASHYAP v. SOUTH EAST CENTRAL 963
RAILWAY [HEMANT GUPTA, J.]

selection they do not acquire any right to the post. Unless the A
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
B
vacancies or any of them are filled up, the State is bound to
respect the comparative merit of the candidates, as reflected
at the recruitment test, and no discrimination can be permitted.”
* * *
14. In Pitta Naveen Kumar v. Raja Narasaiah Zangiti [(2006) C
10 SCC 261, this Court held: (SCC p. 273, para 32)
“32. … A candidate does not have any legal right to be
appointed. He in terms of Article 16 of the Constitution of
India has only a right to be considered therefor. Consideration
of the case of an individual candidate although ordinarily is D
required to be made in terms of the extant rules but strict
adherence thereto would be necessary in a case where the
rules operate only to the disadvantage of the candidates
concerned and not otherwise.”
15. In another judgment reported in Kulwinder Pal Singh Vs. E
State of Punjab, (2016) 6 SCC 532, this Court held that the name of a
candidate may appear in the merit list but he has no indefeasible right to
seek an appointment. It was held as under:
“10. It is fairly well settled that merely because the name of a
candidate finds place in the select list, it would not give him F
indefeasible right to get an appointment as well. The name of a
candidate may appear in the merit list but he has no indefeasible
right to an appointment vide Food Corporation of India v. Bhanu
Lodh (2005) 3 SCC 618, All India SC & ST Employees’
Assn. v. A. Arthur Jeen (2001) 6 SCC 380 and UPSC v. Gaurav
Dwivedi (1999) 5 SCC 180. G
11. This Court again in State of Orissa v. Rajkishore
Nanda (2010) 6 SCC 777, held as under: (SCC p. 783, paras 14
& 16)
“14. A person whose name appears in the select list does not
acquire any indefeasible right of appointment. Empanelment H
964 SUPREME COURT REPORTS [2018] 14 S.C.R.

A at best is a condition of eligibility for the purpose of appointment
and by itself does not amount to selection or create a vested
right to be appointed. The vacancies have to be filled up as per
the statutory rules and in conformity with the constitutional
mandate.
B * * *
16. A select list cannot be treated as a reservoir for the purpose
of appointments, that vacancy can be filled up taking the names
from that list as and when it is so required.”
12. In Manoj Manu v. Union of India (2013) 12 SCC 171, it
C was held that (SCC p. 176, para 10) merely because the name of
a candidate finds place in the select list, it would not give the
candidate an indefeasible right to get an appointment as well. It is
always open to the Government not to fill up the vacancies, however
such decision should not be arbitrary or unreasonable. Once the
D decision is found to be based on some valid reason, the Court
would not issue any mandamus to the Government to fill up the
vacancies. As noticed earlier, because twenty-two other candidates
were declared successful by the Supreme Court pertaining to the
selection of the years 1998, 1999, 2000 and 2001 as Civil Judges
(Junior Division), they were to be accommodated, as rightly
E resolved by the Administrative Committee in the meeting dated 6-
7-2011. The three resultant vacancies of the year 2007-2008 stood
consumed with the joining of the said seventeen candidates and
the same could not be filled up from the select list of that year.
The decision of the Administrative Committee observing that the
F three resultant vacancies stood consumed is based on factual
situation arising there and cannot be said to be arbitrary.”
16. The stand of the Railways before the Tribunal was that the
20% extra candidates were called to take care for eventualities such as
the unfitness of the candidates at the stage of medical examination or
G not turning up of the candidates for document verification etc. It is also
averred that in spite of vacancies remaining unfilled due to non-joining
of selected candidates, no appointment from the extra candidates can
be claimed in view of the instructions of the Railway Board. The stand
of Railways in reply before the Tribunal was not that there was
simultaneous selection process for Group-D posts and for which 2839
H
DINESH KUMAR KASHYAP v. SOUTH EAST CENTRAL 965
RAILWAY [HEMANT GUPTA, J.]

candidates were appointed but the fact remains that such an averment A
has been made before this Court and such an assertion has not been
controverted.
17. The judgment in R.S.Mittal case (supra) deals with
appointment of members of the Income Tax Appellate Tribunal by a
Selection Committee chaired by a Judge of this Court. The Central B
Government has not passed any order on the recommendation of such
Selection Committee. The said Judgment has been explained in another
judgment reported as Union of India v. Kali Dass Batish, (2006) 1
SCC 779. This Court held as under:
“20. The respondents have relied on the judgments of this Court C
in R.S. Mittal v. Union of India 1995 Supp (2) SCC 230 in support
of their contentions. In our view, the said authority hardly advances
their case. In the first place, all that the authority says is that
where a Selection Board headed by a sitting Judge of the Supreme
Court had recommended certain candidates for appointment as
members of ITAT, it was not open to the Government of India to D
sit on the said recommendation without taking action. That was
not a case where a decision taken not to appoint a candidate for
good reason was concurred in by the Chief Justice of India.”
18. However, in the present case, the appellants were called in
for the verification of documents as extra candidates to replace the E
candidates selected who do not join for one or the other reason. Such
candidates were called to meet out the necessity to fill up of posts if the
meritorious selected candidates do not join. In terms of Shankarsan
Dash case (supra), the State has a right not to appoint candidates even
if they are in merit list. The appellants do not possess indefeasible right F
of appointment. It is not the case, that any candidate lower in merit has
been appointed or the appointments have been made by pick and choose
method ignoring merit. The reason given by the Railways in the counter
affidavit is that the requirement to fill 624 posts was not felt in pursuance
of an advertisement in question as there was two simultaneous selection
processes in which 2839 candidates were appointed. Such reason cannot G
be said to be wholly arbitrary which warrant a mandate to the respondents
to appoint the appellants who are not in merit list but at best in the waiting
list. The State has right not to fill up any vacancy advertised. The stand
that the requirement to fill up 624 vacant posts was not felt cannot be
said to be arbitrary warranting a mandamus to appoint the appellants. H
966 SUPREME COURT REPORTS [2018] 14 S.C.R.

A The State cannot be directed to appoint candidates, when it does not
require the posts to be filled up. The decision not to fill up vacancies has
been taken for appropriate reasons and is neither arbitrary nor
discriminatory.
19. Still further, in exercise of power of Judicial Review, this Court
B is not to substitute the decision of the Railways and to direct candidates
in the waiting list to be appointed. In three Judge Bench judgment reported
as Kali Dass Batish case (supra), it has been held that mere inclusion
of a candidate’s name in the selection list gave him no right, and if there
was no right, there could be no occasion to maintain a writ petition for
enforcement of a non-existing right. It has been also held that however
C vide the power of judicial review under Article 226 or 32 of the
Constitution, there is self-recognised limit to exercise such power. The
Court held as under: -
“15. In this matter, the approach adopted by the Jharkhand High
Court commends itself to us. The Jharkhand High Court
D approached the matter on the principle that judicial review is not
available in such a matter. The Jharkhand High Court also rightly
pointed out that mere inclusion of a candidate’s name in the
selection list gave him no right, and if there was no right, there
could be no occasion to maintain a writ petition for enforcement
E of a non-existing right.
* * *
17. In K. Ashok Reddy v. Govt. of India (1994) 2 SCC 303, this
Court indicated that however wide the power of judicial review
under Article 226 or 32 there is a recognised limit, albeit self-
F recognised, to the exercise of such power. This Court reiterated a
passage from Craig’s Administrative Law (2nd Edn., p. 291),
vide SCC p. 315, para 21, as under:
“The traditional position was that the courts would control the
existence and extent of prerogative power, but not the manner
G of exercise thereof. … The traditional position has however
now been modified by the decision in GCHQ case [Council
of Civil Service Unions v. Minister for the Civil Service,
1985 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174
(HL)] . Their Lordships emphasised that the reviewability of
H
DINESH KUMAR KASHYAP v. SOUTH EAST CENTRAL 967
RAILWAY [HEMANT GUPTA, J.]

discretionary power should be dependent upon the subject- A
matter thereof, and not whether its source was statute or the
prerogative. Certain exercises of prerogative power would,
because of their subject-matter, be less justiciable, with Lord
Roskill compiling the broadest list of such forbidden territory….”
The observations of Lord Roskill, referred to above, are B
from Council of Civil Service Unions v. Minister for the Civil
Service 1985 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174
(HL)] (GCHQ case) as under: (All ER p. 956d-e)
“But I do not think that that right of challenge can be unqualified.
It must, I think, depend on the subject-matter of the prerogative C
power which is exercised. Many examples were given during
the argument of prerogative powers which as at present advised
I do not think could properly be made the subject of judicial
review. Prerogative powers such as those relating to the making
of treaties, the defence of the realm, the prerogative of mercy,
the grant of honours, the dissolution of Parliament and the D
appointment of ministers as well as others are not, I think,
susceptible to judicial review because their nature and subject-
matter is such as not to be amenable to the judicial process.”
18. Finally, this Court emphasised judicial restraint by citing with
approval a passage in de Smith’s Judicial Review of E
Administrative Action (vide SCC p. 316, para 23) as under:
“Judicial self-restraint was still more marked in cases where
attempts were made to impugn the exercise of discretionary
powers by alleging abuse of the discretion itself rather than
alleging non-existence of the state of affairs on which the validity F
of its exercise was predicated. Quite properly, the courts were
slow to read implied limitations into grants of wide discretionary
powers which might have to be exercised on the basis of broad
considerations of national policy.”
Based on this reasoning, it was acknowledged that the transfer of G
a Judge of the High Court based on the recommendation of the
Chief Justice of India would be immune from judicial review as
there is “an inbuilt check against arbitrariness and bias indicating
absence of need for judicial review on those grounds. This is how
the area of justiciability is reduced…. [Ibid., para 24] “
H
968 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 19. We, respectfully, reiterate these observations, and expect them
to be kept in mind by all courts in this country invested with the
power of judicial review.”
20. Further in the written submissions submitted on behalf of the
respondents, reliance is placed on the circular dated 18.07.2005 to say
B that the currency of the panel published in the month of March, 2014 is
for a period of two years. Such period can be extended by the General
Manager by one year in case of administrative exigencies.
21. Somewhat similar question was considered in a recent
Judgment dated 22nd November, 2018 of this Court in Civil Appeal No.
C 11149 of 2018 entitled Uttar Pradesh Public Service Commission v.
Surender Kumar & Ors., whereby the Government Order
contemplated that the wait-list can be operated only for a period of one
year, deciding the said aspect, the Court held as under:
“12. Having heard the learned counsels on both sides, we have
D perused the order dated 18.05.2018 passed by the High Court
and other material placed on record. For the purpose of operating
wait-list, Government of Uttar Pradesh has issued instructions
from time to time. It is clear from the various Government Orders
that wait-list period is valid only for a period of one year. Though
requisition is made for making selection for 178 number of posts,
E but appellant Commission, after delcaring results of the
examination, has made initial recommendation for substantive
number of posts, i.e., 156 posts vide letter dated 12.08.2010. It
appears that the said list is prepared by including candidates who
have submitted all the requisite documents within the period
F prescribed. Further recommendations were also made, but there
is no reason for not computing the period of one year from
12.08.2010. When recommendations were made for substantive
number of posts on 12.08.2010, we are of the view that period of
one year for operating wait-list is to be computed from 12.08.2010
but not from the last recommendation made for one post, vide
G letter dated 28.08.2012. The reason for restricting 156 names in
the initial recommendation vide letter dated 12.08.2010, is explained
in paragraph 11 of the counter affidavit filed before the High
Court”.

H
DINESH KUMAR KASHYAP v. SOUTH EAST CENTRAL 969
RAILWAY [HEMANT GUPTA, J.]

22. Since the validity of the select panel has come to an end on A
the afflux of time, therefore, there cannot be any order to appoint the
persons from such select list prepared wayback in the year 2014 in
pursuance to the advertisement issued on 15.12.2010. Such panel cannot
be a perennial source of appointment.
23. Thus, in exercise of power of judicial review, I do not find any B
reason to interfere in the decision-making process of the Railways, so
as not to appoint the appellants against Group D posts advertised on
15.12.2010.
24. Consequently, I do not find any illegality in the order passed
by the Tribunal and the High Court. The appeals are accordingly C
dismissed. No Costs.

Divya Pandey Appeals disposed of.

D

E

F

G

H