Holding

The select list expired after one year as per Rule 5(6); continuation beyond that is illegal, and the State's refusal to appoint from the expired list is not arbitrary, rendering the High Court's order untenable.

Summary

The State of Bihar prepared a panel of 273 candidates for Assistant Teacher posts under the 1975 Bihar Government Assistant Teachers Service Encadrement Appointment and Transfer Rules. While 98 candidates were appointed (91 joined), the remaining candidates were placed on a waiting list. The High Court, by interim order, prevented the panel from lapsing beyond its statutory one‑year validity, prompting the State to appeal. The Supreme Court held that Rule 5(6) of the Rules, framed under Article 309 of the Constitution, limits the life of such a panel to one year, which expired on 18 January 1992; any continuation beyond that is illegal. The Court further ruled that the State, while revising its reservation policy, was not obligated to fill existing vacancies and that the refusal to appoint from the expired panel could not be deemed arbitrary or mala‑fide. Consequently, the High Court’s finding of arbitrariness was set aside and the writ petition dismissed.

Issues considered

The validity of the High Court's order directing continuation of the select list beyond its one‑year statutory period.
Whether the State's refusal to appoint candidates from the expired panel constitutes arbitrariness, irrationality, or mala‑fide action.
Whether the State may suspend appointments while revising its reservation policy under Article 309.

Legislation cited

Constitution of Indias. Article 309

Subjects

service lawappointmentreservation policyselect listpanelstatutory rulearbitrarinessArticle 309Biharassistant teacherswaiting list

Judgment

A STATE OF BIHAR AND ORS.
v.
MD. KALIMUDDIN AND ORS.

JANUARY JO, 1996

B [A.M. AHMADI, CJ AND S.C. SEN, J.]

Service Law :

Bihar Government Assistant Teachers Service Encadrement Appoint-
ment and Transfer Rules, I 975 :
c
R. 5(6}-Assistant Teachers--Seledion (If-Select list-Government
giving appointment to sotne o.f the Candidates in seriatirn·-Refusal of ap-
pointment to remaining candidates after expiry of one year from date of
preparation of panet in contemplation o.f revision o.f reservation policy--Writ

.l
D petition by candidates not appointed:--/nterim order by High Court directing
continuance of panel beyond one' year-Held, continuance of panel is violative •
of statutory rule and illegal-Government not obliged to fill up existing ,-
vaC.:ancies ({it Was considering a change in reservation policy.

A panel of 273 persons including the respondents for appointment
E to the post of Assistant Teacher in the State of Bihar was prepared by the
Selection Committee on 19.1.1991 after following due selection process.
Out of this panel, the Director, Primary Education, Bihar approved the
names of 98 persons for appointment and ultimately 91 candidates joined.
Rest of the candidates remained on the panel described as waiting list. ..\

F Some of the candidates who were not appointed filed a writ petition before
the High Court on 20.1.1992. By an interim order of the High Court the
panel was not allowed to lapse. Aggrieved, the State Government filed the
present appeal.

It was contended for the appellant that in view of the provisions of
G clause (6) of Rule 5 of the Bihar Government Basic School Assistant
Teachers Service Encadrement, Appointment and Transfer Rules, 1975, •
the list of candidates prepared for direct appointments would be valid for
one year from the date of approval of the project by the Selection
Committee and the order of the High Court to continue the list beyond
H one year was contrary to the ru~e,;_ framed in exercise of the powers under
J 314
STATE v. MD. KALIMUDDIN [AHMADI, Cl.] 315
Article 309 of the Constitution; and that the High Court erred in A
entertaining the writ petition after one year of the preparation of the
panel, which had expired by then, on the erroneous assumption that the
writ petition was moved before the expiry of one year. For the respondents
it was contended that there were in all 160 vacancies when the advertise-
ment was issued and the selection was made and therefore, at least that B
number of candidates should have been appointed after the conclusion of
the selection; and that even assuming that the person on a waiting list did
not have a legal right to appointment, the Department could not
arbitrarily refuse to make appointments from the panel prepared for that
purpose after raising legitimate expectations.
c
Allowing the appeal, this Court

HELD: 1. The High Court was notjustifie~ in holding that the State
had acted arbitrarily and irrationally in refusing to make appointments
from the select list. In the first place, the select list had lapsed on the expiry
of one year. Secondly, the process of appointment was halted as the reser-
D
• vation policy was intended to lie amended or modified. [319-G]

Shankarsan Das v. Union of India, [1991] 2 SCR 567, relied on.

2. In view of snb-rule (6) of Rule 5 of the Government Basic
Schools Assistant Teachers Service Encadrement, Appointment and E
Transfer Rules, 1975 framed under Article 309 of the Constitution and
having statutory force, the life of the panel prepared by the Selection
Committee on 19.1.1991 was of one year which expired on 18.1.1992 by
, force of the rule. Continuance of the panel or list beyond one year would
be a violation of the statutory rule and, therefore, illegal. Even the court F
could not stop it from lapsing in exercise of judicial discretion unless its
constitutional validity was questioned. The petition was filed after the
damage was done i.e. after expiry of the period of one year.
[317-F-G; 319-B-C]

3. Even if it is assumed that the panel or select list had not expired G
at the date of filing of the writ petition, the refusal on the part of the
Government to make appointments from the panel or select list could not
be condemned as arbitrary, irrational and/or ma/a .fule. The Government
... was desirous of aniending or modifying the reservation policy as is evident
from its letter dated 27.5.1993 and, therefore, it took a decision to H
316 SUPREME COURT REPORTS [1996) l S.C.R.
A suspend all fnrther appointments from existing panels or select lists. If
it was considering a change in the reservation policy of the State in
consistent with the Constitution, it was not obliged to fill up the existing
vacancies. (320-H; 321-A; 320-F; 319-E)

Shankarsan Das v. Union of India, [1991) 2 SCR 567, relied on.
,B •
CIV!i.. APPELLATE JURISDICTION : Civil Appeal No. 1573 of 1996.

From the Judgment and Order dated 18.2.94 of the Patna High Court
in C.W.J.C. No. 542 of 1992.

C B.B. Singh for the Appellants.

Shanti Bhushan and Jayant Bhushan for the Respondents.

The Judgment of the Court was delivered by

D AHMADI, CJ. Special leave granted.

The Director, Primary Education, Bihar, issued an advertisement on
•
7.8.1988 inviting applications for appointment to the post of Assistant Teach-
ers. The respondents applied in response thereto. They were interviewed by a
Selection committee some time in July, 1989 and thereafter a panel of 273
E persons including the respondents came to be prepared by the said Selection
Committee on 19.1.1991. Out of the candidates so selected, the Director ap-
proved the names of 98 persons for appointment on 30.1.1991 and hence the
remaining candidates remained on the panel described as the waiting list. Out
of 98 candidates so appointed, 47 belonged to the general category, 43 to the
Scheduled Tribes category, 6 to the Scheduled Castes category and 2 to the
F handicapped category. Out of 98 persons, only 91 joined. The panel for the
remaining candidates was prepared on 26.8.1991, which was described as the
revised waiting list. Some of the candidates, who were not appointed, moved
the High Court by way of writ petition on 20.1.1992. By an interim order of the
High Court, the panel was not allowed to lapse.
G The Government Basic School, Assistant Teachers Service Encadrement,
Appointment and Transfer Rules, 1975 (hereinafter called 'the Rules')
framed under Article 309 of the Constitution provides that every teacher will

H
be appointed on probation for two years. It further provides that the list of
candidates prepared for direct appqintments will be valid for one year from
the date of approval of the project by the Selection Committee. The
..
~'-
I

STATE v. MD. KALIMUDDIN [AHMADI, CJ.] 317
contention of the learned counsel for the appellants, therefore, is that the A
High Court's order to continue the list beyond one year runs counter to rules
framed in exercise of constitutional powers under Article 309 of the
Constitution and hence the same cannot be allowed to stand. He has further
pointed out from the decisions of this Court that a candidate placed on the
waiting list has no right to appointment and that in any case the waiting list
B
cannot be a list which would enure indefinitely till every candidate on the
list is appointed. According to him under the provisions of clause (6) of Rule
• 5, the list of candidates prepared could enure for one year only from the date
~ of approval of the project by the Selection Committee and on the expiry of
that period, which in the instant case expired two days before the writ
petition was filed, the list would stand exhausted. As against this, the learned c
counsel for the respondents contended that there were in all 160 vacancies
when the advertisement was issued and selections were made and, therefore,
at least that number of candidates should have been appointed after the
conclusion of the selection. He urged that although a person on a waiting list
may not have a legal right to appointment, the Department cannot arbitrarily D
}
refuse to make appointments from the panel prepared for that purpose after
, raising legitimate expectations. Our attention was drawn to certain corre-
spondence exchanged in this behalf to which it is not necessary to refer as
the fact that there were 160 vacancies is not disputed. The question then is
whether after going through the process of selecting candidates what was the
reason for the Government to refuse appointments to selected candidates, at E
least to the extent of 160 vacancies? The High Court points out in paragraph
8 of the impugned judgment that against 160 vacancies only 98 persons were
given appointments out of them 91 reported for duty and the rest were denied
appointment for no valid reason whatsoever.
F
It was next contended by counsel for the appellant that the High Court
had entertained the petition after one year i.e. after the list had lapsed, on
the erroneous assumption that the respondents had moved the petition before
the expiry of one year. According to him the panel of 273 candidates was
prepared on 19.1.1991 and hence its life came to an end on the expiry of one
year on 18.1.1992 while the petition was filed two days later on 20.1.1992 G
and was, therefore, clearly after the list had lapsed. The High Court,
contends counsel, was wrong in observing:

"However, as stated above, the writ petition was filed on 20.1.1992.
Thus, even if the period or life of the panel was treated to be one H
318 SUPREME COURT REPORTS [ 1996] 1 S.C.R.
A year, it is obvious that the petitioners have come to this Court before
expiry of the said period."

The above observation, it was said, illustrates the factual error in calculating
the time factor.

B The fact that the empanehnent was done in pursuance of the advertise-
ment issued and selections made as per the prevailing legal position, is not
in question. So also it is unexceptionable that merely because a candidate's
name is included in the panel does not confer any right to be appointed. See
Shankarsan Dash v. Union of lndia, [1991] 2 SCR 567. The question,
C however, is, if the posts are not abolished or reduced and the vacancies need
to be filled up, can it lie in the mouth of Government to say that since a new
reservation policy has been adopted, the rules would be amended and
appointments would be made thereafter consistent with the revised rules and
new policy? The advertisement was issued in 1988. The Memo No. 22 dated
19.1.1991 shows that the panel was received in the office of the Regional
D Director on 18.1.1991. This memo says that the vacancies in matric trained
category in the division were 160. It further desired that the list may be
approved at an early date so that long standing vacancies may be filled up.
'
It also points to the paucity of matric trained teachers in various schools. The
subsequent letter of 5.6.1991 directs that a panel of candidates of different
E categories of reservation in order of merit be prepared as per the modified
rules of reservation and the same be sent for approval. It further says that
unless this is done, no recruitment shall take place. In response to the said
letter the Regional Dy. Director of Education informed the Director (Primary
Education), Vide letter dated 26.8.1991, that he had already submitted the
approved panel in the secretariat for appointment of teachers under the
F amended rules of reservation. This is how the position stood when the writ
petition was filed on 20.1.1992.

From the aforementioned facts it is clear that the Selection Committee
had prepared the panel or list on 19.1.1991. The first batch of 98 appoint-
ments was made ther~from. The reservation rules were then modified. The
G second batch as per the said CTodified rules was sent later on 5.6.1991. But
the panel was the one prepared on 19.1.1991. Part III of the Rules provides )
for 'Appointment and Promotion'. Clause (6) thereof reads :

"Every teacher will be appointed on probation for two years. The
H list of candidates prepared for direct appointment will be valid for
STATE v. MD. KALIMUDDIN [AHMADI, CJ.] 319
the one year from the date of approval of the project by the Selection A
-~ committee."

The life or duration of the panel or list was, therefore, of one year. It,
therefore, expired on 18.1.1992 by the force of the above-quoted rule. The
Rule having been framed under Article 309 of the Constitution, therefore, had
B
statutory force. The appellant-State was, therefore, right in contending that
continuance of ,he panel or list beyond one year would be a violation of the
• statutory rule and, therefore, illegal. Even the court could not stop it from
.f lapsing in exercise of judicial discretion unless its constitutional validity was
questioned. There is no doubt that the petition was filed after the damage was
done, i.e. after expiry of the period of one year. This contention of the State C
is unexceptionable.

Next, it must be noted that the State Government had by the letter of
27.5.1993 desired to revise its reservation policy and, therefore, had placed a
general embargo against recruitment from old waiting lists. It was also stated D
that rules as per the modified policy are in the process of being formed and
further appointments will be as per the revised rules. However, in the present
case as pointed out earlier the list had expired long back and had ceased to
be operational. The State Government was entitled in law to change its
reservation policy inconsistent with the Constitution. If it was considering a
change in the reservation policy of the State, it was not obliged to fill up the E
existing vacancies.

As held in the case of Shankarsan Dash even if vacancies are notified
for appointment and adequate number of candidates are found fit, the
successful candidates do not acquire an indefeasible right to be appointed, F
unless the relevant rules indicate to the contrary. It is indeed expected of the
State to act bona fide and for valid reasons in refusing to make the appoint-
ments after the selection process has been gone through. The High Court has,
however, come to the conclusion that the State had acted arbitrarily and
irrationally in refusing to make appointments from the select list. We find it
difficult to subscribe to this view. In the first place, as pointed out earlier, the G
select list had lapsed on the expiry of one year. Secondly, the process of
appointment was halted as the reservation policy was intended to be amended
or modified. The High Court, however, approached the matter thus :

"The panel thus does not appear to be violative of the reservation H

•
}~·
320 SUPREME COURT REPORTS [1996] l S.C.R.

A policy of the State. So far as the proposed rules of recruitment are
concerned, the details of which have not been furnished from which ;..
it could be gathered as to whether any substantial or drastic deviation
is sought to be made from the existing rules regarding the procedure
of recruitment except that training is no longer to be a necessary
qualification or condition of eligibility. I do not want to go into the
B
correctness of the policy of the State dispensing with the necessity of
the training as a condition of eligibility. However, I have serious
doubt whether appointment of untrained teachers in preference to the
trained ones who are already in panel and available for appointment
can be said to be in public interest."
c
It is on this line of reasoning that the High Court came to the conclusion that
the action of the State Government was arbitrary and irrational. Now, as held
in Shankarsan Dash 's case, a decision to adopt a different policy with respect
to the reserved vacancies can be a justifiable cause for halting further
D appointments from the panel or select list and such an action cannot be
condemned on grounds of arbitrariness and/or illegal discrimination. Whether •
doing away with the training is in public interest or otherwise would depend '
on the facts and circumstances of each case and that would be a matter to be
put in issue if the rules in that behalf are sought to be challenged on the
ground of unreasonableness or discrimination. The High Court has said in
E terms that it does not want to go into the correctness of that policy, yet,
expressing a 'serious doubt' it has virtually condemned the policy. In the
~
instant case the Government was desirous of amending or modifying the
reservation policy and, therefore, it took a decision to suspend all further
appointments from existing panels or select lists. The ultimate outcome of that "
F exercise is not fully brought out on record but it is obvious that the State
Government was not acting mala fide and merely with a view to denying
appointment to the respondents herein. Merely because notwithstanding the
availability of trained personnel the State Government was inclined to
change the rules in that behalf does not appear to be a valid ground for
G contending that the Government had acted mala fide. Without knowing the
nature of change it was not open to the High Court to anticipate the policy
and brand it as unreasonable.

For the above reasons we are of the opinion that even if it is assumed
that the panel or select list had not expired at the date of filing of the writ
H petition, the refusal on the part of the Government to make appointments from
•
STATE v. MD. KALIMUDDIN [AHMADI, CJ.] 321
the panel or select list, vide letter dated 27.5 .1993, could not be condemned A
as arbitrary, irrational and or mala fide. We, therefore, reverse the view
taken by the High Court, set it aside and hold that the original Writ Petition
was liable to be dismissed and we hereby dismiss the same. No order as to
costs.

R.P. Appeal allowed. B