Holding

The Government must either approve the entire select list or reject it with reasons; a partial approval is invalid and, having lapsed after one year, the list cannot be compelled to be approved.

Summary

The Jammu & Kashmir Public Service Commission prepared a select list of twenty candidates for the post of District Munsif under the 1967 Recruitment Rules. The State Government approved only the first thirteen names and appointed them, while refusing to approve the remaining seven despite petitions and a High Court order. The petitioners sought a writ directing the Government to approve and publish the full list. The Supreme Court held that under Rule 39 the Government's approval is a substantive act, not merely ministerial, and it must either approve the entire list or reject it with recorded reasons; a partial approval is impermissible. Since the Government neither disapproved the whole list within a reasonable time nor approved the remaining names, and the list had lapsed after one year without vacancies, the Court found no basis to grant relief. Consequently, the appeals were dismissed and the writ petition rejected.

Issues considered

The nature of the Government's power under Rule 39 of the Jammu & Kashmir Civil Services (Judicial) Recruitment Rules, 1967 – whether it is ministerial or discretionary.
Whether the Government can approve a select list partially and reject the rest.
Whether the failure to approve the remaining names within a reasonable time renders the list invalid.
Whether the lapse of the list after one year bars any judicial intervention.

Legislation cited

Constitution of Indias. Article 317, s. Article 318, s. Article 319, s. Article 320, s. Article 323(2)
Jammu & Kashmir Civil Services (Judicial) Recruitment Rules, 1967s. Rule 39, s. Rule 41

Subjects

public service commissionselect listappointmentRule 39Rule 41constitutional lawArticle 323judicial recruitmentadministrative discretionvacancylist lapsewrit petition

Judgment

A MRS. ASHA KAUL AND ANR. ETC.

STATE OF ,JAl\11\IU AND KASHMIR AND ORS.

APRIL 15. 1993
R
(U.r..rnEVAN REDDY AND N. VENKATCHALA, .J.J.]

.lammu & Kash111ir Ciril Sen·ices (Judicial) Recruitme111 Rule.
1967: Rules 39. 41 read \\'ith Articles 3 I 7-320.

c Cr111s1iturio11 ofl11dia. I 950-Appoi111111e11t of Mu11s(f1·-Se/ect list
r!f'twe11ry names hy Puhlic Sell'ice Com111issio11--Go\'Cm111e111 ·s pmrer
to disapproi·e or ca11cel-Scape of-Effect <!/' Select list after one
W:'(ff-l11clusio11 i11 select li.1·1-wf1etf1er c01~fers a right to appoi11t111e11t.

Co11stitutio11 of India. 1950 : Article I 3G-Appeal-Appoi11tme11t
))
of M 1.111s(f1·-G01·emme111 's act i a11 ofnat appr01·i11g re111ui11i11g names in
select lisr-/11te1/ere11ce /Jy Supreme Court 1111der rite circumsrances
1rhether cal/edfor.

On 28.5.1984, the High Court intimated the government of ten
E \'acandes in the categoQ' of l\lunsifs and requested it to initiate
appropriate steps for selection of candidates.

\Vritten test was held in the ~·ear 1985 and ~·frav1Jce was also held
h~· the Puhlic Sen·ice Commission.

F
On 10.12.1985 the High Court requested the Go,·ernment to
select twenty candidates in the place of ten. On 27.12.1885 the
Go,·ernmt:nt requestt!d the Public Sen·ice Commission to select
twent~· candidates: On t 1.3. t 986 the Public senice commission sent
three select lists, i.me containing twent~· candidates the other coritain-
G ing three Scht!duled ca·stes candidates and a waiting list of ten
candidates.

The Gcwernment receh·ed se\'eral complaints against the pro-
cess of selection. It was to~·ing with the idea of scrapping the entire list
H and asking for a fresh selection.

94
MRS. ASHA KAUL'" STATE of J. & K.
95

On 23.12.1986, as the High Court said that there was urgent need A
for at least thirteen Munsifs, the go\'ernment approved the names of
thirteen persons out of the list recommended by the Public Service
commission and published the same. They were appointed on 30.12.
1986.

B
Meanwhile a writ petition had been filed in the High Court for
a direction to the Go\'ernment to appro\'e and publish the list recom-
mended by the Public Sen·ice Commission.

On 30.12.1986, the State stated before the High court that it has
alread~· appro\'ed thirteen names and approval of the remaining C
. seven persons was under its acti\'e consideration. The High Cimrt
dismissed the writ pdition as settled. The GO\·ernment did not
appro,·e an~· other names in the list in ,·iew of the complaints against_
the selection process by the Public Service Commission.
I>
The candidates in the select list below serial No. 13 were pressing
the Gowrnment to appro\·e and publish the list and th~ High Court
was also pressing the Gm·ernment to appro,·e the list in view of the
vacancies.

Another writ petition was filed to direct the Government to E

- appro,·e the remaining se\·en names from the select list.

The High Court (Singlti Judge) allowed the writ petition and
directed the Go\·ernment to appro,·e and publish the list of the
remaining candidates submitted h~· the Public Service Commission to F
it for appointment as l\lunsifs immediate!~· in accordance with the
Jammu and Kashmir Ch·il Sen·ices (Judicial) Recruitment Rules,
1967 and to consider the appointment oft he candidates (including the
writ petitioners) as Munsifs in the rncancies existing or likely to arise,
in accordance with the recommendations to be made h~· the High
G
Court.

On appeal, the di\'ision Bench of the High Co.urt reversed the
decision of the Single .Judge. · .., ·

The present appeals b~· special lea\'e were flied against the H
, ._;. - ' , ~- , , __ . -...\"'

96 ... . . ' \ : ' ...
· Sl'PRE\IE COl'RT REl'ORTS [199313 S.C.R.
\'

.,"'-A deci;-<~'". of the I)i,·ision
\'( . '
-Ilench. ·contending- 'thitf-(iiiee··--the Puhlic
. ---
Se~\·ice Com_mission prepared and reco_mmended a select li,st, the
~: c;o\·ernme~t had -ni:> Po\Ver -tl~. ~it ir;\jlld~ent O\"er it; that the
' ·. . .. ' .. .
.'... ' ... '. . _,-. .. . . ~ .
<iol'ernnlent \Vas hound toappro,·e the li'.'t as r~commended; that the
'
f'uncti<;n uf the G<n'<rn.;,tnt und<r 1{ule 39 uf th;, 1967 Rules was
merely ~i~nisteri~l 'and·f;Jrffial; that the Gove~n!llent's action was
11 arbitrary and ~~pricious ~nd \'itiated by inadmissible and extraneouS
conside.ratiOn.i

-1.he St~te· c;~~:~·~;;-~·~nt suh.initted that the furlction of the. Go\·..
~rnment under ({ule39 ,,.-a~ ilot inerel~· r,;rmal or ministerial; ihat the
C (~o,·ernment, hein~ the appointing aUthority, \vas entitled to scruti-
nies th~ list 'open to the (;o,·ernment ~ither io appr;,,.e or disa'pp'ro,·e
/'the list, eithel- \\'holly or in part; that a 'nUmher of complaints ,,. er~
rel.-ei,·t:d h~· the Go\·efiiment a;..:ainst the seleCtion and man)· of them
\\'ere fou~·d _t'~ he not ,\·it~<;ut._SuhstanCe;' thili in \'~e\v of the pressin~£-
--y
-
net£d expr'eS.~t!d hj:th·t!~Hi~h_C,)u-1-t~ the first thirteen candidates iri the
ll list \\"er:e appr~1\·ed in the int~r;st' ~lf jlidi~ial administration;· that
refusal toappro\·e the remainingseyen names inasmuch as no \'acan-
cies ''·ere a\·ailahle at that tim~ \Vas a ,·alid and bona fide' exercilie of
po"·er· and :disC~etioii on. the" -part of th~ Go\·~~·nment;-.that the
apiJetla'nL"' had no le~al ri~ht to be'appointedjust h~c'ausetheir riames
E w<re included in th< s<l<ct list' prepared hy th< Public Ser~ic< ~>---
Commission.

l>ismissing the i.ppeals!' this Court;-

F HEU>: I.I. It is tru< that the Gowrnm<nt is th< appnintin~
authority_:for the· nlun."'ifs hut it is mi~leadinY t<) asse'rt that in ihe
rriatterofselection and appoi.ntment the Go,·ernment haS arl ahsolute
po'''t!~. Such an argument'dO~ violence to th·e constitutional scheme~
(102-F)

,,~
1.2. Rule 39 does not confer itri a·bso1Ute-pO\\'er upon the Gol·ern·
. mt.:n't to di~llpp·ro,·e or canCel the select list sent-by-the l'uhlic Ser,·iCe-_
C(1~;.ission \~'he"re. ho\\'e\·er, the Gol·ernment iii satisfied, after-due.

·~
erlquiry that' the selection has been \"itiated either on account of
,-folatio~ ·or3 fund~ineni~I procedural requiremen·t or is ,:iti3ted hy
H consideration or corruption, fa\·ourtism or ltepotism, it can refuse tO-
I'
'~....__.~~
.,r
MRS. ASHA KAUL,._ STATE of J. & K. 97

-~
approve the select list. In such a case, the.Government is bound to A
record the reasons for its action, and produce the same before a
Court, if and when summoned to do so, apart from placing the same
before the Legislature as required by clause (2) of Article 323.
(103-F-H)

B
1.3. Art. 323 (2) is meant as a check upon the power of the
Government. The pro\•ision militates against the theory of ahsotute
power in the Go\'ernment to disapprove or reject the recommenda-
tions of the commission. For the same reason, it must he held that the
Government cannot pick and choose candidates out of the list. It is
equally not open to the Government to appro\'e a part of the list and C
disapprove the balance. (104-8)

1.4. Where is respect of an)' particular candidates any material
is discO\'ered disclosing his involvement in an)' criminal acth·it)·, the
Go,·ernment can alwa)'S refuse to appoint such person but this would l>
not be a case touching the select list prepared and recommended by
the commission. (104-C)

1.5. In this case the Government itself had asked for a list of
twent)' and the commission had sent a list oftwent,y. It could not have
been approved in part and rejected in part. The number of vacancies E
arnilahle on the date of appro,·al and publication of the list is not
material. ll)' merely apprcwing the list of twent)', there was no
obligation upon the Government to appoint them forthwith. Their
appointment depended upon the availability of \'acancies. The list
remains \'alid for one year from the date of its approval and publica- F
tion, if within such one year, an)·· of the candidates therein is not
appointed, the list lapses and a fresh list has to be prepared.
(104-E-F)

1.6. If the Government wanted to disapprove or reject the list, it
G
ought to have done so within a reasonable time of the receipt of the
select list and for reasons to be recorded. Not having done that and
h.aving approved the list part!)' (thirteen out of twenty names), they
cannot put forward any ground for not appro,·ing the remaining list.
Indeed, when it approved the list to the extent of thirteen, it ought to
have approved the entire list of twenty or to have disapproved the H
98 SliPRE!\1E COL' RT REPORTS [1993 J 3 S.C'.R.
,
A entire list of twenty. The objection, the Government have pertains to
the very process of selection i.e., to the entire list and not indh·idually
to any of the remaining seven candidates. (104-G)

1.7. l\.lere inclusion in the select list does not confer upon the
candidates included therein an indefeasible right to appointment.
B (104-H)

State ofHaryana v. Sub//as// Cllandara Marwal!a, A.I.R. 1973 SC.
2216, M. S. Jain v. State of Haryana. A.I.R. 1977 S.C. a11d State of
Kerala v. A. Laks//mikutty, A.I.R. 1987 S.C. 331, referred to. (l 11-E)
c
1.8. The other aspect is the obligation of the Government to act
fairly. The whole exercise cannot be reduced to a more farce. Having
sent a requisition/request to the commission to select a particular
--
number of candidates for a particular category,-in pursuance of
D which the commission issues a notification, holds a written test,
conducts interviews, prepares a select list and then communicates to
the Go,·ernment-the Go,·ernment cannot quietly and without good
and rnlid reasons nullity the whole exercise and tell the candidates
when they complain that they have no legal right to appointment.
(105-B-C)
E
Sha11karsa11 Dasi! v. Union of India. 1991 (3) SCC 47, referred to.

2. The Government's action in not approving the rest of the seven
names in the select list is unsustainable but there are certain circum-
F stances which induce the Court not to interfere in this matter. They
are: (i) During the period of one year from the date of approval of
thirteen names (23.12. 1986/30.12 1986) no vacancy had arisen, which
means that e\·en if the list of twenty had been approved and published
on December 23 or December 30, 1986 none of the seven persons
G would have been appointed. At the end of one year, the list lapses and
becomes inoperative. (ii) When the Government failed, to act within
a reasonable period from the date of the order (December 30, 1986)
of the High Court in writ petition 1316/84 (which was disposed of
recording the statement of the Advocate General) the petitioners
ought to have moved in the matter. They did not do so. They waited
H for more' than twenty months and approached the High Court only on
MRS. ASHA KAUL 1·. STATE of J. & K. [REDDY.J.] 99

September 14, 1988. This dela~· disentitles the petitioners from any A
relief in the facts and circumstances of the case. ( 106-C-G)

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1730-
31/l 993.

From the Judgment and Order dated 30.6.1992 and 2.9.1992 of
n
the Jammu and Kashmir High Court in LP.A. No 161/90. and C.W.P.
)-
No. 1352/88.

D.D. Thakur, M.H. Baig, Rajendra Mal Tatia, Indra Makwana

- and K.K. Gupta (for Suresh A. Shroff & Co.) for the Appellants.

V.R. Reddy, Addi. Solicitor General and Ashok Math.Ur for the
Respondents.
c

The Judgment of the Court was delivered by D

R.P..J.?~EVAN REDDY, .J. Ikard counsel for the parties. Leave
granted in S.L.Ps. 12608/92 and 16418/92.

The appeals are directed against the judgment of the Division E
Bench. of the Janunu and Kashmir High Court allowing a special
appc,11 preferred hy the State of Jammu and Kashmir against the
judgment of the learned Single Judge. The learned Single Judge had
allowed the writ petition filed hy the appellants herein. The matter
pertains tO approval and publication of the select list of District
Munsifs prepared by the Jammu and Kashmir Public Service Commis- F
sion.

On May 28, 1984 the High court intimated the Government often
vacancies in the category ofmunsifs and requested the Government to
initat~ appropriate steps for selection of candidates. The government G
wrote to the public service commission and the latter issued the
notification and put the process in motion. Written test was held in the
year 1985. viva-voce was also held. At that stage, the High Court
requested the government (with a copy forwarded to the public service
conunission) to select twenty candidates in the place of ten. This was
done on December I 0, 1985. The govenl.ment, in turn, requested the H
public service commission on December 27, 1985 to select twenty
100 SUPRD1E C<)LTRT REPORTS 119931 ~ S.C.R.

A candidates. On March l l, 1986 the Public Service Commission sent
three select lists,. one containing twenty candidates, the other contain-
-
ing three scheduled castes candidates and a waiting list of ten candi-
dates.

From the record placed bdore us by the learned counsel for the
B
State of Janm1u and Kashmir, it appears that the government received
several complaints against the selection process .. The government
appears to have been satisfied prim a facie \vith some of those con1-
plaints and was toying with the idea of scrapping the entire list and

C
asking for a fresh selection. The select list sent by the commission was
kept pending without being approved as required by Rule 39 of the
Jamrnu and Kashmir Civil Services (Judicial) Rccntitmcnt Ruks,
-
l 967. Meanwhile, the High Court had been pressing for approval of the
names in view of a number of vacancies and the consequent accumu-
lation of work. Number of courts were without presiding officers. In
particular, the High Court said, there was ur~ent need for at least
0
thirteen Munsifs. In the circumstances, the Government approved, on
December 23. 1986, the names of thirteen persons out of the list
recommended by the public service commission and published the
same. They were appoi n~ed on December 30, 1986. Meanwhile, a writ
petition had been filed in the High Court for a. direction to the
E Government to approve and publish the list rcconunended .by the
public service commission. On December 30, 1986. the Advocate
General for the State stated before the court that the Government has
already approved thirteen names and that the question of approval of
the remaining persons in the list was under the active consideration of
the Government, Recording the said statement, the writ petition was
F
dismissed as settled. The Government. however. did not approve any
of the other names in the lists, evidently in view of the very same
reasons for which they were disinclined initially to approve the said
lists. Meanwhile, the candidates in the select list below serial No. 13
were pressing the government to approve and publish the list. The High
G Court was also addressing the government from time to time to
approve the list in view <;>f certain vacancies arising since the appoint-
ment of the thirteen Munsifs aforementioned. Since no further names
were being approved by the government, the writ petition, from whi'ih
these appeals arise, was filed on September 14, 1988. The writ petition
H was allowed on July 11, 1990 by a learned Single Judge and a direction
was issued to the State Government to approve and publish the list of
MRS. ASHA KAUL"· STATE of J. & K. [REDDY, J.) 101

the remaining candidates submitted by the public service commission A
to it for appointment as n.mnsifs immediately in accordance with the
Rules of 1967 and to consider the appointment of such candidates
(including the writ petitioners)as munsifS in the vacancies existing or
likely to exist in accordance with the recommendations to be made by
the High Court. On appeal, the Division Bench disagreed with the
learned Single Judge. The Bench held that approval and publication B
of the select list by the Government under Rule 39 is not a mere
ministerial act but a meaningful one. It i's open to the government to
examine the select list carefully and to reach its own conclusion
regarding the suitability and merits of the candidates and publish the
names of only those candidates who are found stiitable. While approv- c
i ng the list, the. Di vision Bench he Id, the State Government cannot alter
or temper with the order of merit determined by the commission but it
is certainly open to the government to stop at a particular point where
it feels that a particular candidate is not meritorious and not to approve
the remaining list. The government is not bound to fill up the existing
D
vacancies within a particular time-frame. The mere inclusion in the
select list also does not confer upon the candidates any indefeasible
right to appointment. The recommendations of the commission are not
binding upon the State Government-held the Division Bench. In the
facts and circumstances of the case, it must be held that the remaining
seven names in the select list have been disapproved by the govern- E
ment. The writ petition also suffers from leaches. The persons who had

- meanwhile become eligible and qualified to apply for the said post
should also be given a chance. A list prepared as far back as 1985-86
cannot be directed to be approved in the year 1992.

In \hese appeals, it .is submitted by the learned counsel for the F
appellants that once the public service commission prepares and
recommends a select list, the government has no power to sit in
judgment over it. It is bound to approve the list as recommended. The
function of the government under Rule 39 of the 1967 Rules is merely
ministerial and formal. Even otherwise, the government has not G
disclosed any reasons for not approving the seven names while
approving the first thirteen. The government's action is arbitrary and
capricious. It is indeed vitiated by inadmissible and extraneous consid-
erations. The government cannot be allowed an absolute power in the
matter. On the other hand, it is contended ~y Sri Dipankar Gupta, H
learned Solicitor-General appearing for the State of Jammu and
102 SUPREME COURT REPORTS (1993] 3 S.C.R.

A Kashmir that the function of the government under Rule 39 is not
merely formal or ministerial. The government being the appointing
authority, is entitled to scrutinise the list prepared by the public service
commission. rt is open to the government either to approve or disap-
prove the list,oeither wholly or in part. As a matter of fact, a large
number of complaints were received by the government against the.
8 said selection and many of them were also found to be not without
subst~nce. However, in view of the pressing need expressed by the
High Court, the first thirteen candidates in the list were approved in the
interest of judicial administration. The remaining _seven· names were
not approved inasmuch as no vacancies were available at that time. In .
c all the circumstances of the case, the Hon'ble Chief Minister took a
decision on March 28, 1988 not to approve any further names and to
go in for fresh selection. Inasmuch as the vacancies at the end of the
year 1986" were not more than thirteen, the refusal to approve the
remaining seven is a valid and bonafide exercise of power and
discretion on the part of the government. The appellants have no legal
D
right to be appointed just because their names have been included in the
select list prepared by the public service commission. The first
requisition by the High court was sent in May, 1984. The written test
was held in I 985. The select list was recommended in March, 1986.
After a lapse of more than seven years, the said list cannot now be
E directed to be given effect to, the learned Solicitor-general submitted..
Such a direction would deprive a large number of persons, who have
become qualified and eligible to apply and complete for the said post
meanwhile of the opportunity of applying for the said post. Many of
..
them may even become age-barred meanwhile, he submitted.
F
It is true that the government is the appointing authority for the
munsifs but it is misleading to assert that in the matter of selection and
appointment the government has an absolute power. Such an argument
does violence to the constitutional scheme. The Constitution has
created a public service comrrlission and assigned it the function of
G Conducting examinations for appointments to the services of the
Union or to the serviCes of the State, as the case may be. According to
Article 320 clause (1) this is the primary function of the commission.
The Government is directed to consult the public service commission
on all matters relating to methods of recruitment to civil services and
H to civil posts and on the principles to be followed in making· appoint-
- j

ment to civil services and posts and on the suitability of candidates for
.MRS. ASHA KAUL''· STATE of J.& K. [REDDY. J.) 103

such appointment, among other matters. An examination of A.rticles A
,, 317 to 320 makes it evident that the constitution Contemplates the
commission to be an independent and effective body outside the
governmental control. This is an instance of application of the basic
tenet of democratic form of government viz., diffusion of governing
power. The idea is not to allow the concentration of governing power
in the hands of one person, authority or organ. It is in the light of this B
constitutional scheme that one has to construe Rules 39 and 41 of the
1967 Rules. They read as follows:

"39. Final List: The list of selected candidates after it

-- is approved shall be published by the Government
Gazette and a copy thereof shall be sent to the court
along with the Waiting list, if any, furnished by the
c

commission for record in their office."

41. Security to the list: D

The list and the Waiting list of the selected candidates
shall remain in operation for a period of one year from
. the date of its publication in the. Govt. Gazette or till
it is exhausted by appointment of the candidates
whichever is earlier, provided that nothing in this Rule E

.. shall apply to the list and the waiting list prepared as
a result of the examination held in 1981 which will in

-· operation till the list or the waiting list is exhausted."

Construed in the above light, Rule 39, in our opinion, does not F
confer an absolute power upon the government to disapprove or cancel
,,...... the select list sent by the public service commission. Where, however,
the government is satisfied, after due enquiry that the selection has
been vitiated either on account of violation of a fundamental proce-
dural requirement or is vitiated by consideration of corruption,
G
favourtism or nepotism, it can refuse to approve the select list. In such ,-
a case, the government is bound to record the reasons for its action,
and produce the same before a Court, if and when summoned to do so,
apart from placing the same before the Legislature as required by
clause (2) of Article 323. Indeed, clause (2) of Article 323 obliges the
Governor of a State to lay a copy of the annual report received from the H
104 SUPRD1E COURT REPORTS (1993] 3 S.C.R. ·

A commission before the Legislature "together with a memorandum
explaining, as respect the cases, if any, where the advice of the -r
commission \Vas not accepted (and) the reasons for such non-accep-
tance." Evidently, this is meant as a check upon the po\ver of_the
government. This provision too militates against the theory of absolute
power in the government to disapprove or reject the recommendations
B of the commission. For the same reason, it must be held that the
government cannot pick and choose candidates out of the list. Of
course, where in respect of any particular candidate any material is
discovered disclosing his involvement in any criminal activity, the
government can. always refu£e to appoint such person hut this would
c not be a case touching the select list prepared and recommended by the
commi~ion. It is equally not open to the government to approve a part
of the Ii.St apd disapprove the balance. In this case, it may be remem-
bered that the government itself had asked for a list of twenty and the
commission had sent a list of twenty. (we are not concerned with the
waiting list sent by the commission, at this stage) . It could not have
D been approved in part and rejected in part. The number of vacancies
available on the date of approval and publication of the list is not
material. By merely approving the list of twenty, there was no
obligation upon the government to appoint them forthwith. Their
appointment ,'.epend~d upon the availability of vacancies. A reading of
E Rule 41 makes this aspect clear. The list remains valid for one year
from the date of it~ ::ipproval and publication. If within such one year;
--
-
any of the candidates therein is not appointed, the list lapses and a fresh
list has to be prepared. In this case, no doubt, a number l)f complaints
appears to have been received by the government about the selection
F process. We have seen the note file placed before us. It refers to certain
facts and complaints. But if the government wanted to disapprove or
reject the list, it ought to have done so within a reasonable time of the
receipt of the select list and for reasons to be recorded. Not having done
that and having approved the list partly (thirteen out of twenty names)
, they Gmnot put forward any ground for not approving the remaining
G list. 111< kcd, when it approved the list to the extent of thirteen, it ought
to have a rproved the entire list Of twenty or have disapproved the entire
list of 1w,·nty. The objection, the government have pertains to the very
process 1 If selection i.e., to the entire list, and not individually to any
of the rc111aining seven candidates.
H
It is true that mere inclusion in the select list does not confer upon
MRS. ASHA KAUL v. STA TE of J.& K. [REDDY. J.) 105

the candidates included therein an indefeasible right to appointmem A
StateofHaryanav. Subhasll Cl1andraMarwa/JaA.l.R. 1 973S.C.2216;
M.S. Jain v. State of Harym,1a A.LR. 1977 S.C. 276 and State of Kera/a
v. A. Lakshmikuity A.I.R. 1987 S.C 331 but that is only one aspect of
the matter. The other aspect is the obligation of the government to act
fairly. The whole exercise cannot be reduceq to a farce. Having sent
a requisition/request to the commission to select a particular number B
of candidates for a particular category, -in pursuance of which the
commission issues a notification, holds a written test, conducts a
notification, holds a written test. conducts interviews, prepares a select
list and then co1rununicates to the government-the government cannot
quietly and without good and valid reasons nullify the whole exercise c
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. This aspect has been dealt with by
a Constitution Bench of this Court in S/Ja11karsa11 Dasi! v. Union of
India L1991] 3 S.C.C.47 where the earlier decisions of this court are
D
also noted. The following observations of the court are apposite:

·"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 E
cannot be legitimately denied. Ordinarily the notifica-
tion merely amounts to an invitation to qualified

- candidates to apply for recruitment and on their selec-
tion 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
F
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 vacan-
cies or any of them are filled up, the State is bound to G
respect the comparative merit of the candidates, as
reflected at the recruitment test, and no discrimination
can be permitted. This correct position has been
consistently followed by this Court, and we do not find
any discordant note in the decisions in State of Rary-
H
106 Sl'PREME COURT REPORTS (199313 S.C.R.

A ana. \.. Subflasll Chander Marwafls~ Neelima Sliangla
\·. State of Haryana. or Jatendra Kumar v. State of
Punjab."

We may reiterate that the principle of Article 323, referred to
hereinabove, is equally relevant on the nature of the power of the
n government in such a matter.

Looked at from the above stand-point, it appears that the
government's action in not approving the rest of the seven names in the
select list is unsustainable but there are certain circumstances which
C induce us not to interfere in this matter. They are:

(i) During the period of one year from the date of approval of
-
thirteen names (23.12.1986/30.12.1986) no vacancy had arisen. which
means that even if the list of twenty had been approved and published
D on December 23 or December 30, 1986 none of the sevt:n persons
would have been appointed. At the end of one year. the list lapis and
becomes inoperative. The first letter of the High Court stating that one
or two more vacancies have arisen and rc4uesting the government to
approve the remaining names, was sent only on August 13, 1988 i.e.,
long after the expiry of the one year period. Any direction at this stage
E to approve the list would be a futile exercise. The list cannot. be
operated with respect to the vacancies existing as on today; and

(ii) When the government failed'to act within a reasonable period
from the date of the order (December 30, 1986 ) of the High Court in
F writ petition 1316/84 (which was disposed of recording the statement
of the Advocate General) the petitioners ought to have moved in the
matter. They did not do so. They waited for more then twenty months
and approached the High Court only on September 14, 1988. This
delay in our opinion, disentitles the petitioners from any relief in the
facts and circumstances of the case.
G

For the above reasons, the appeals fail and .are dismissed. No
costs.

WRIT PETITION (CJ NO. 81OF1993:
H
. MRS. ASHA KAUL v. STATE of J.& K. [REDDY,J.) 107

The petitioner in this writ petition was included in the waiting list A
prepared by the public service commission. Since the appeals pre-
ferred by the candidates at serial No. 14 onwards in the main list have
themselves failed, there is no question of giving any relief to this
petitioner.

B
The writ petition accordingly fails and is dismissed. No costs.

V.P.R. Appeals dismissed.

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