Holding

Inclusion in a select list does not confer an indefeasible right to appointment; appointment must be offered only when a vacancy exists and the employer acts bona fide, and a later bona fide policy decision to abolish the post is not liable to judicial interference.

Summary

The case concerned M. Pushkaran, whose name appeared at No.4 on a select list for three security‑guard vacancies in a medical institute. While two candidates were appointed and a third declined, Pushkaran was not offered the post and filed a writ petition. The institute later adopted a policy to abolish the vacant posts and contract out security services. The Supreme Court held that mere inclusion in a select list does not create a legal right to appointment; the employer must act bona fide, but a later bona fide policy decision to abolish the posts is permissible. Since the policy decision was taken after the petition and no arbitrariness was shown, the court dismissed the appeal. The judgment reaffirmed that candidates have a right to be considered, not an indefeasible right to be appointed.

Issues considered

Whether a candidate whose name appears in a select list has a legal right to appointment when a vacancy arises.
Whether the employer's policy decision to abolish the posts and contract out services, taken after the writ petition, defeats the candidate's claim to appointment.
Whether the employer's action amounts to mala fide or arbitrary denial violating Article 14 of the Constitution.
Whether the court can intervene by issuing a writ in the absence of proof of arbitrariness.

Subjects

service lawappointmentselect listright to appointmentpolicy decisioncontracting outjudicial reviewArticle 14ex‑servicemanvacancyadministrative discretion

Judgment

~.

---- DIR. S.C.T.I. FOR MED. SCI & TECH. & ANR. A
v.
M. PUSHKARAN

NOVEMBER 23, 2007
B
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.)
" ~

Service Law: Appointment-Select list candidates-Right of
appointment-Held: Mere inclusion ofthe name ofcandidates in the
select list does not confer upon the candidates legal right to c
appointment subject, to bona fide action on part ofthe State-On facts,
selectee should have been offered appointment when posts were
vacant-Policy decision to abolish the post as also contracting out the
services was taken much after selectee challenged non-appointment-
_, Thus, no reason not to offer appointment. D

,,(
The question which arose for consideration in this appeal was
whether the respondent whose name appeared at no. 4 in the select list
had any legal right for being appointed against the post of three security
guards advertised by the appellant-institute, when the post became E
vacant and when the appellant had taken policy decision to abolish the
-t
post as also contract out security services.

Dismissing the appeal, the Court

HELD: 1.1. Only because the name of a person appears in the F
select list, the same by itself may not be a ground for offering him an
appointment. The selectees do not have any legal right of appointment
sub.iect, inter alia, to bonafide action on the part of the State. Therefore,
the superior court in exercise ofits power of judicial review would not
ordinarily direct issuance of any writ in absence of any pleading and G
proof of ma/afide or arbitrariness on the part of the employer.
......__;
[Paras 11and16) [470-C, D; 472-F, G]
1.2. The application oflaw would depend upon the fact situation
465 H
466 SUPREME COURT REPORTS [2007] 12 S.C.R.

A obtaining in each case. The respondent was to be offered with the
appointment at a point of time when no policy deci~ion was taken. Thus,
there was no reason not to offer any appointment in his favour. Why
the select panel was ignored has not been explained. Even the purported
policy decision was not in their contemplation. Furthermore, the
B respondent is an ex-serviceman. He in ordinary case should have been
offered appointment particularly when three posts were vacant. The
decision to abolish posts was not taken at a point of time when he had
filed the writ petition. It was expected that when the third candidate
refused to join the post, he should have been offered the same. The
C policy decision to abolish the posts as also contracting out the security
services was taken by the appellant much thereafter, the respondent
challenged his non appointment. The judgment of High Court that the
respondent need not challenge the decision taken by the Government
Body, when there was no decision in the resolution was adopted by the
D Governing Body to abolish the post but only to fill up the permanent
posts on contract basis, the next person included in the list for regular
appointment was to be considered, cannot said to be perverse. Therefore,
it is not a fit case for interference with the order of High Court. '
[Paras 17, 18, 19 and 20] (469-D, E; 473-D, E, F, G]
E ShankarsanDashv. Union ofIndia, (1991]3 SCC47;R.S. Mittalv.
Union ofIndia, [1995] Supp 2 SCC 230; Asha Kaul (Mrs.) and Anr. v.
State ofJammu and Kashmir, (1993] 2 SCC 573; A.P. Aggarwal v. Govt.
ofNCT ofDelhi andAnr., [2000] 1SCC600; Food Corpn. OfIndia and
Ors. v. Bhanu Lodh and Ors., (2005] 3 SCC 618; All India SC & ST
F Employees' Association andAnr. v.A. Arthur Jeen and Ors., (2001] 6 SCC
380; Pitta Naveen Kumar and Ors. v. Raja Narasaiah Zangiti and Ors.,
(2006] 10 SCC 261; State ofRajasthan and Ors. v.Jagdish Chopra, (2007)
10 SCALE 470; Union ofIndia and Ors. v. S. Vinodh Kumar and Ors.,
(2007) 11 SCALE 257 and State ofMP. and Ors. v. Sanjay Kumar Pathak
G and Ors., (2007) 12 SCALE 72, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5368 of
2007.
From the final Judgment and Order dated 4.12.2006 of the High
Court ofKerala at Ernakulam in W.A. No. 2075/2006.
H
DIR. S.C.T.1. FOR MED. SCI & TECH. v. 467
M. PUSHKARAN [SINHA, J.]
L. Nageshwara Rao, Ragenth Basant, Liz Mathew and Senthil A
Jagadeesan for the Appellants.
P.S. Narasimha, M. Gireesh Kumar and Khwairakpam Nobin Singh
for the Respondent.
The Judgment of the Court was delivered by B

S.B. SINHA, J. 1. Leave granted.
2. A short question which arises for consideration in this appeal is
as to \\-ilether the respondent herein had any legal right for being appointed
against the post of three security guards advertised by the appellant - C
institute.
3. The basic fact of the matter is not in dispute. An advertisement
was issued for appointment to the post of security guards. There were
three permanent posts. The select list contained names of five candidates. D
The nan1e of the respondent appeared at SI. No. 4 therein. It was finalized
on 11.04.2005. It had a validity period of one year i.e. upto 10.04.2006.
Whereas two candidates were offered appointments on 13.04.2005 and
5.05.2005, the third candidate was offered appointment on 13.06.2005.
He declined the same. Respondent, however, for reasons best known to E
the appellant, was not offered any appointment. He filed a writ petition
questioning his non-appointment on 12.12.2005.
4. On or about 13.07.2005, however, a purported policy decision
was taken to contract out some of the services in a phased manner to
make the administration efficient and cost effective in the following terms: F
"After detailed deliberations, it was resolved that (i) a copy of the
request sent to the Employment Exchange, Thiruvananthapuram
may simultaneously be circulated/posted by the Institute to all the
Employment Exchanges in Kerala especially in case of direct G
recruitment of Group - D posts specifying the number of
candidates to be sponsored for each post so as to achieve a wider
coverage; (ii) in the case of Group C and B Direct recruitment
posts, paper advertisement shall, continue to be resorted in one
or two leading newspapers and (iii) for temporary vacancies/ H
t
468 SUPREME COURT REPORTS [2007] 12 S.C.R.

--.._
.,
A leave vacancies of Cleaning Attendants/ Security Guards, the
external contract system prevalent in BMT Wing may be
extended to the Hospital Wing also in a phased manner. "
5. A resolution was adopted by the Governing Body in a meeting
held at the Institute on 29.12.2005 in the following terms:
B
"We have been deliberating for quite sometime on contracting out .
some of the services on a phased manner to make it more efficient ---
and cost effective. It is noted that the security at BMT Wing,
Poojappura that was contracted out on a trial basis has been found
c successful.
It was noted that at present there are 2 permanent vacancies of
Security Guards and 2 permanent posts of Drivers that are lying
vacant.
D It was resolved to abolish these vacant posts and services may be ...
contracted out/hired and ratify the decision of the Director not to )._

fill the two vacant posts of Security Guards and Drivers on
permanent basis."

E 6. A learned Single Judge of the High Court by a judgment and order
dated 20.09.2006 inter alia opined:
,
"5. I do not think that the petitioner has made out a case for
interference. No doubt, the petitioner approached this Court on
12.12.2005. Ext. Rl(b) decision is dated 29.12.2005. But, I do
F not think that that is sufficient to overturn the decision of the
management. The question as to which are the posts to be filled
up, is all a management decision. Ordinarily, it is not for this Court
to veto the wisdom of the employer in regard to the posts which
are to be retained and posts which are to be abolished. A decision
G to abolish a post cannot be attacked by a person figuring in a rank
list, unless, no doubt, an extraordinarily case of malice or per se ').._.;
arbitrary action is established. Apparently, the respondents felt that
the post need not be retained, having regard to the advantages that
would flow from contracting of these services as also the pecuniary
H
DIR. S.C.T.I. FOR MED. SCI & TECH. v. 469
·.~ M. PUSHKARAN [SINHA, 1.]
loss that would otherwise flow. It is hard to characterize such a A
decision as arbitraty, as sought to be shown in the Reply Affidavit.
It is settled law that a person in the rank list has no legal right to
command the employer to appoint him. This is not a case where
after having taken a decision to fill up the posts, the respondent is
• -J. not offering appointment to the petitioner. Ext. Rl(b) is not B
challenged by petitioner. In such circumstances, the Writ petition
fails and it is dismissed."

7. On an intra-court appeal preferred by the respondent herein from
the said judgment and order, the Division Bench, however, reversed the c
same, inter alia, holding:
" .. .If the vacancy was abolished necessarily there was no question
of appointment either on substantial or on temporary basis. There
is a decision to fill it up on temporary basis. Thus, contract
appointment reveal the existence of the vacancy. The 3rd among D
~
the vacancies notified was one really intended to be filled up even
on 13.6.2005 when the 3rd rank holder in the list had been offered
appointment. The decision contained in Ext. Rl(b) is the decision
taken by the Governing Body. The petitioner/ appellant need not
challenge the decision taken by the Government Body, when there E
is no decision in Ext. Rl (b) to abolish the post but only to fill up
the permanent posts on contract basis. Then, the next person
included in the list for regular appointment has to be considered ... "

8. Appellants are, thus, before us: F
9. Mr. L. Nageshwara Rao, learned senior counsel appearing on
behalf of the appellants, submitted that the Division Bench of the High
Court committed a serious error in holding that there was a vacancy on
a temporary basis.
G
•-,_,('
It was urged that keeping in view a number of decisions of this Court,
the impugned judgment is wholly unsustainable. Reliance in this behalf has
been placed on Shankarasan Dash v. Union of India, [1991] 3 SCC
47; State of Bihar and Ors. v. Md. Kalimuddin and Ors., [1996) 2
SCC 7 and Punjab State Electricity Board and Ors. v. Malkiat Singh, H
470 SUPREME COURT REPORTS [2007] 12 S.C.R.

A [2oos1 9 sec 22.
10. Mr. P.S. Narasimha, learned counsel appearing on behalf of the
respondent, on the other hand, would submit that the institution had four
departments. In some of the departments a policy decision to contract
B out the services was taken; but, so far as the department in which the
respondent was to be appointed, no policy decision had been adopted :.-
for contracting out the job of the security persons and in that view of the
matter the respondent had a legitimate expectation of his being appointed.
11. The law operating in the field in this behalf is neither in doubt
C nor in dispute. Only because the name of a person appears in the select
list, the same by itself may not be a ground for offering him an
appointment. A person in the select list does not have any legal right in
this behalf
D The selectees do not have any legal right of appointment subject,
inter alia, to bona fide action on the part of the State. We may notice >-
some of the precedents operating in the field.
12. In Shankarsan Dash v. Union of India, [1991] 3 SCC 47,
this Court held:
E
"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
F notifo:ation 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
G 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
H permitted. This correct position has been consistently followed by
DIR. S.C.T.I. FOR MED. SCI & TECH. v. 471
.,r'
M. PUSHKARAN [SINHA, J.]
this Court, and we do not find any discordant note in the decisions A
in State of Haryana v. Subhash Chander Marwaha, Neelima
Shangla v. State of Haryana, or Jatendra Kumar v. State of
Punjab."

.._ _.) 13. Yet again in R.S. Mittal v. Union ofIndia, [I 995] Supp 2 SCC B
230, this Court held:
"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
selected. He has a right to be considered for appointment. But
at the same time, the appointing authority cannot ignore the c
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
-"-' appointment. There has to be a justifiable reason to decline to D
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 candidates
-.. expeditiously and in accordance with law. The appointment should E
~
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."
F
(Emphasis supplied)
14. In Asha Kaul (Mrs.) and Anr. v. State ofJammu and Kashmir,
[1993] 2 SCC 573, this Court held:
"8. It is true that mere inclusion in the select list does not confer G
\
~_.(·

upon the candidates included therein an indefeasible right to
appointment (State ofHaryana v. Subhash Chander Marwaha;
Mani Subrat Jain v. State of Haryana; and State of Kera/a v.
A. Lakshmikutty) but that is only one aspect of the matter. The
other aspect is the obligation of the Government to act fairly. The H
472 SUPREME COURT REPORTS [2007] 12 S.C.R.

A whole exercise cannot be reduced to a farce. Having sent a
requisition/request to the Commission to select a particular number
of candidates for a particular category, - in pursuance of which
the Commission issues a notification, holds a written test, conducts
interviews, prepares a select list and then communicates to the
B Government -- the Government cannot quietly and without good
and valid reasons nullify the whole exercise and tell the candidates
when they complain that they have no legal right to appointment.
We do not think that any Government can adopt such a stand with
any justification today ... "
c {[See also A.P. Aggarwal v. Govt. of NCT of Delhi and Anr..
(20001 1 sec 600]}.
15. In Food Corpn. Of India and Ors. v. Bhanu Lodh and Ors.,
[2005] 3 SCC 618, this Court held:
D
"14. Merely because vacancies are notified, the State is not obliged
to fill up all the vacancies unless there is some provision to the
contrary in the applicable rules. However, there is no doubt that
the decision not to fill up the vacancies, has to be taken bona fide
E
and must pass the test of reasonableness so as not to fail on the
touchstone of Article 14 of the Constitution. Again, if the vacancies
are proposed to be filled, then the State is obliged to fill them in
accordance with merit from the list of the selected candidates.
-
Whether to fill up or not to fill up a post, is a policy decision, and
F
unless it is infected with the vice of arbitrariness, there is no scope
for interference in judicial review."
16. It is, therefore, evident that whereas the selectee as such has no
legal right and the superior court in exercise of its power ofjudicial review
would not ordinarily direct issuance of any writ in absence of any pleading
G and proof of mala fide or arbitrariness on the part of the employer. Each
case, therefore, must be considered on its own merit.
17. In All India SC & ST Employees' Association and Anr. v. A.
Arthur Jeen and Ors., [2001] 6 SCC 380, it was opined:
H
DIR. S.C.T.I. FOR MED. SCI & TECH. v. 473
M. PUSHKARAN [SINHA, J.]
"10. Merely because the names of the candidates were included A
in the panel indicating their provisional selection, they did not
acquire any indefeasible right for appointment even against the
existing vacancies and the State is under no legal duty to fill up all
or any of the vacancies as laid down by the Constitution Bench of
this Court, after referring to earlier cases in Shankarsan Dash v. B
Union of India.
[See also Malkiat Singh (supra), Pitta Naveen Kumar and Ors.
v. Raja Narasaiah Zangiti and Ors., [2006] 10 SCC 261, State of
Rajasthan & Ors. v. Jagdish Chopra, (2007) 10 SCALE 470, Union
of India & Ors. v. S. Vinodh Kumar & Ors., (2007) 11 SCALE 257 C
and State of MP. & Ors. v. Sanjay Kumar Pathak & Ors., (2007) 12
SCALE 72.
18. The application of law would, therefore, depend upon the fact
situation obtaining in each case. The judgment of the High Court in view D
of the aforementioned authoritative pronouncements cannot be said to be
perverse. The respondent was to be offered with the appointment at a
point of time when no policy decision was taken. There was, thus, no
reason not to offer any appointment in his favour. Why the select panel
was ignored has not been explained. Even the purported policy decision
was not in their contemplation. We, therefore, do not see any reason to E
interfere with the impugned judgment.
19. Furthennore, the respondent is an ex-serviceman. He in ordinary
case should have been offered appointment particularly when three posts
were vacant. The decision to abolish posts was not taken at a point of F
time when he had filed the writ petition. It was expected that on
16.06.2005 when the third candidate refused to join the post, he should
have been offered the same.
20. The policy decision to abolish the posts as also contracting out
<---"'· the security services was taken by the appellant much thereafter, viz., on G
or about 29.12.2005. We are, therefore, of the opinion that it is not a fit
case where we should interfere with the impugned judgment. The appeal
is dismissed. No costs.
N.J. Appeal dismissed. H