N. MOHANANversusSTATE OF KERALA AND ORS.

A                                N.MOHANAN
                                        v.
                                                                                       ...
                       STATE OF KERALA AND ORS.

                             DECEMBER 20, 1996

B              (K. RAMASWAMY AND G.T. NANAVATI, JJ.J

         Kera/a Secretariat Subordinate Se1Vice Special Rules : Rule 7

         Service Law-Select List-Right of candidates on panel-Kera/a
c Secretariat Subordinate Service-Recrnitment of Legal :Assistant Grade-
  II-Select list-Petitioner's name included in the list but he was not ap-
  pointed-Writ seeking direction for appointment-Petitioner appointed
  pursuant to interim direction of Court-Subsequently another Notification
  issued inviting applications for appointment to post of Legal Assistant and
D panel already prepared cancelled-In these circumstances High Court held
  that the appointment of the petitioner, though under the directions of the
  Court, could not be regularised-AppeaHleld, High Court rightly negatived
  fhe contention that even though the petitioner has no right to be appointed
  yet he should be regularised as he was appointed on the basis of order of
  Court provisionally-Appointment by interim order does not create any right
E nor the petitioner gets any right to regularisation on that basis-The High
  Court has not committed any e1Tor nor announced any wrong principle of law
  warranting interference.

         Ashok Kumar & Ors. v. Chairman Banking Service Recrnitment Board
F   & Ors., AIR (1996) SC 976, held inapplicable.

           Union of India & Ors. v. lshwar Singh Khatri & Ors., [1992] Supp. 3
    SCC 84; Shankarasan Dash v. Union of India, [1991] 2 SCR 567; Babita
    Prasad and Ors. v. State of Bihar & Ors., [1993] Supp. 3 SCC 268; Union
    Territory of Chandigarh v. Dilbagh Singh & Ors., [1993] 1 SCC 154; Nagar
G   Mahapalika, Kanpur v. Vinod Kumar Srivastava, AIR (1987) SC 847; State
    of Haryana v. Subhash Chander Narwaha & Ors., [1974] 1SCR165; State            /

    of Bihar & Ors. v. Secretariat Assistant Successful Examinees Union 1986 and
    Ors., [1994] 1SCC126; Dr. MA. Haque v. Union of India, [1993] 2 SCC
    213 and Surendra Kumar Gyani v. State of Rajasthan, AIR (1993) SC 115;
H   referred to.
                                           920
                   M. MO HANAN v. STATE                    921
                         '
     CIVIL APPELLATE JURISDICTION : Special Leave Petition (C) A
No. 24398 of 1996.

     From the Judgment and Order dated 22.11.96 of the Kerala High
Court in O.P. No. 13328 of 1992.

      T.L.V. Iyer, P. Santhalingam and K.V. Sreekumar for the Petitioner.        B
      The following Order of the Court was delivered :

     This special leave petition has been filed against the judgment of the
Kerala High Court, made on November 22, 1996 in O.P. NO. 13328/92.
                                                                                 c
       The petitioner therein, while working as an AITT>istant in the
Economics and Statistics Department, had applied for recruitment as
Legal Assistant Grade II by transfer under Kerala Secretariat Subordinate
Service Special Rules (for short, the 'Rules'). Rule 7 of the Rules
prescribes the method of appointment to the post of category 7, viz., Legal      D
Assistants, Grade II, (i) by direct recruitment; or (ii) appointment from
Assistant Tamil Translators, and Assistant Kannada Translators; or (iii)
appointment or promotion from any other category in Kerala Secretariat
Subordinate Service; or (iv) transfer from any category in any Department
under the Government or in the service of the High Court of Kerala.
Pursuant thereto, the petitioner and others applied for appointment by           E
transfer as legal Assistant. Rules of rotation and quota have been
prescribed in the Rules. Applicat:ons were made through Departments,
written test was conducted on August 8, 1989 and merit list was prepared
on October 23, 1989 for filling up one post of Legal Assistant, Grade II by
transfer from other Departments. The petitioner was included, at No. 13,         F
in the merit list. Though vacancies were existing, he was not appointed.
Therefore, he filed a writ petition for direction for appointment. Pursuant
to the interim direction, he came to be appointed Oll October 15, 1992. By
Notification dated December 15, 1992 applications were called for to fill
up the post of Legal Assistant, grade II from other Departmental can-
didates. Consequently, the waiting list was cancelled. It was contended that     G
the list prepared in 1989 was still in operation. It was not intended that the
list will be restricted to a particular period. The petitioner was appointed
to the existing vacancy pursuant to the direction. Therefore, he is required
to be regularised irrespective of the notification published on December
15, 1992 calling for applications from other departments. In this back-          H
    922                    SUPREME COURT REPORTS(1996] SUPP.10 S.C.R.

A ground, the High Court held that the appointment of the petitioner, though
  under the directions of the Court, could not be regularised. The petitioner
  relied upon Union of India & Ors. v. Ishwar Singh Khatri & Ors., [1992]
  supp. 3 sec 84, and contended that the existing vacancies should be filled
  up from the select list and that the omission therein is arbitrary and
B violative of his right. We find no force in the contention. In Shankarasan
  Dash v. Union of India, [1991) 2 SCR 567, a Constitution Bench had held
  that mere inclusion of the name in the list of selected candidates does not
  confer any right upon any candidate to be selected unless the relevant rules
  so indicate. In Babita Prasad and Ors. v. State of Bihar & Ors., [1993] Supp.
  3 sec 268, though the life of the panel was not prescribed, it was directed
C to be confined to a reasonable time. A long waiting list cannot be kept in
  infinitum in view of the principle ''iltfinitum injure reprobatur". A distinction
  made for the purpose of appointment between those who have already
  been appointed and those who are in the waiting list or had undergone
  training and waiting for appointment. It cannot be treated as arbitrary. This
D Court has held that the panel was too long and was intended to last
  indefinitely barring the future generations for decades for being considered
  for the vacancies arising much later. In fact, the future generations would
  have been kept out for a very long period, if the panel would have been
  permitted to remain effective till it got exhausted. A p~nel of that type
E cannot be equated with a panel which is prepared having co-relation to the
  existing vacancies or anticipated vacancies arising in the near future. In
  Union Territory of Chandigarh v. Dilbagh Singh & Ors., [1993) 1 SCC 154,
  it was held that a candidate whose name finds place in the select list for
  appointment to a civil post does not acquire an indefeasible right to be
F appointed in such post in the absence of any specific rule entitling him for
  such appointment and he could be aggrieved by his non-appointment only
  when the Administration does so either arbitrarily or for no bona fide or
  valid reason. In Nagar Mahapalika, Kanpur v. Vinod Kumar Srivastava, AIR
  (1987) SC 847, it was observed that the reason underlying the limitation of
  the period of life of waiting list for one year is obviously to ensure that
G other qualified persons are not deprived of their chances of applying for
   the posts in the succeeding years and being selected for appointment. In
  State of Haryana v. Subash Chander Narwaha & Ors., [1974) 1 SCR 165,
   this Court had held that though vacancies were existing selected candi.dates
  had no right to the appointment. It would be open to the Government not
H to appoint the candidates from the list for valid reasons. In State of Bihar
                         M. MO HANAN v. STATE                             923

& Ors. v. Secretariat Assistant Successful Examinees Union 1986 and Ors.,        A
(1994] 1 SCC 126, this Court had held that a person having been selected,
does not, on account of being empanelled alone, acquire any indefeasible
right to appointment. Empannelment is, at the best, a condition of
eligibility for purposes of appointment and by itself does not amount to
selection or creating right to be appointed unless relevant rules state to the   B
contrary. In that case, select list was prepared on the basis of merit in the
examination without. any qualifying marks. All the persons who wrote the
examination were ranked in the merit list. They claimed the right to get
appointment contending that till the list was exhausted, no fresh list could
be prepared and that they were entitled to the appointment. The conten-
tion was negatived and it was held that there is no provision in the relevant    C
rules giving indefeasible right to the persons whose names appeared in the
list to get appointed. There is no provision under the Rules prohibiting
authorities to fix the time limit.

       Shri T.L.V. Iyer, learned senior counsel, contends that the list was D
not published and so the life of the panel did not expire. We find no force.
The fact that candidates were appointed from the panel is proof of its
publication. It is then contended that even though the petitioner has no
right to be appointed since he was appointed on the basis of the order of
the Court provisionally, the appointment already made should be allowed
to be continued and should be regularised. The High Court has negatived E
this contention, and in our view rightly. The interim order is subject to
result of outcome of the final adjudication. if the. petitioner is not successful
in the final decision, the interim order would stand set aside. So appoint-
ment by interim order does not create any right nor the petitioner gets any
right to regularisation on that basis. In Dr. MA. Haque v. Union of India, F
(1993] 2 SCC 213, this Court had held that recruitment rules made under
Article 309 of the Constitution have to be followed strictly and not in its
breach. If disregard of the rules and the bypassing of the public service
Commissions are permitted, it will open a back door for illegal recruitment
without limit. Recruitment rules should be strictly followed and the Public
Service Commission can not keep the rules in cold storage. It was, there- G
fore held relying on the above.ratio that since existing list was closed and
recruitment was made through public Service Commission, the petitioner
has no right to that post. The reliance of the petitioner on the judgment of
this Court inAshok Kumar & Ors. v. Chainnan, Banking Service Recruitment
Board & Ors., AIR (1996) SC 976, was rightly not accepted. Therein H
    924                   SUPREME COURTREPORTS[1996) SUPP.10 S.C.R.
A appointment to vacancies arising subsequently without being notified, was
  held to be violative of Articles 14 and 16 since everyone is entitled to ,claim
  consideration for appointment to a post under the State. the vacant posts
  arising or expected should be notified and no one can be appointed without
  due notification of the vacancies and selection according to rules and the
B prescribed procedure. Therefore, appointments made from amongst the
  waiting list candidates would be illegal. In the above case also, this Court
  refused to interfere with the order passed by the High Court even on
  equitable grounds. In Surendra Kumar Gyani v. State of Rajasthan, AIR
  (1993) SC 115, this Court had held that termination of the services of the
  temporary employees on the availability of the candidates recruited though
C the Public Service Commission was held to be valid in law and was not
  vitiated by any error of law. Thus we see that the High Court has not
  committed any error nor announced any wrong principle of law warranting
  interference.

          The special leave petition is accordingly dismissed.
D
    T.N.A.                                                   Petition dismissed.