STATE OF BIHARversusKAUSHAL KISHORE SINGH AND ORS.

                                STATE OF BIHAR                                       A
                                          v.
                    KAUSHAL KISHORE SINGH AND ORS.

-                                 APRIL 10, 1997

                  [K. RAMASWAMY AND D.P. WADHWA, JJ.]                                B

            Se1vice Law :

           Recn1it111e11t-Class III posts-Bihar State Selection Service Board-No
    medt list prepared-Selection made 011 the basis of educational qualifications
    required for the job and in some cases the payscales available at that           c
    time-Held : Recommendations in respect of allotment and appointment of
    selected candidates per se illegal-Not mandatory for the Govemmcllt to
    accept options of candidates and make appoi111me11t to the post-Asking for
    option is discretionmy and Govemment not bound to select candidates 011
    that basis--11ie direction would apply only to those cases where ap- D
    pointments have not become final.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1607 of
    1987.

          From the Judgment and Order dated 17.2.86 of the Patna High Court
    in C.W.J.C. No. 686 of 1984.                                                     E

            Akhilesh Pandey for R.P. Singh for the Appellant.

            T.C. Ray and Deba Prasad Mukherjee for the Respondents.

            Ms. Abha Jain (NP) A Sharan for Impleading party.                        F
            The following Order of the Court was delivered :

            Impleadment application is dismissed.

          This appeal by special leave arises from the judgment of a learned         G
    single Judge of the Patna High Court, made on February 17, 1986.

          A few admitted facts are sufficient for disposal of this appeal.
    Recruitment to the Class III posts in several categories in the State of Bihar
    was advertised by the Bihar State Selection Service Board, Large number
    of candidates applied for selection. There were 1005 posts in all; initially,    H
                                         837
    838                   SUPREME COURT REPORTS                    (1997) 3 S.C.R.

A 978 and subsequently 127 posts were included. For 7 categories of posts,
    special educational qualification of graduation with Commerce, Science,
    Economics and Mathematics has been prescribed. For 3 categories of
    posts, only general educational qualifications have been prescribed. All are
    required to have graduation degree as a minimum educational qualifica-
                                                                                       ...
    tion. Before selection of the candidates, the pay structure of some of the
B   posts underwent drastical change. Some of the posts carrying higher pay
    scale, prior to the advertisement, were of a lower grade with lesser scale
    of pay while some of the posts due to Pay Commission recommendations
    were increased. Be that as it may, when the selection was made and
    appointments were sought to be made of the selected candidates, as per
c   the affidavit filed in this regard, on a direction given on iuly 30, 1987, the
    Government claimed that "the Board considered candidates for various
    posts as per availability at the time and recommended candidates strictly
    on the basis of pay scale and academic qualifications of job requirements."
    The High Court proceeded on the premise that no merit lists was prepared
D   and the candidates who had aptitude for certain job or entitlement are
    required to be considered for appointment. Options had not been called
     for. Therefore, the selection and appointment of the candidates without
     preparing merit list dnd without calling for the option is arbitrary, violating
    Article 14 of the Constitution.

E        The question, therefore, is : whether the view taken by the High
  Court is correct in law? When we asked the learned counsel for the
  appellant to place before us the merit list to substantiate the stand taken
  in the affidavit tiled in that behalf, the learned counsel was unable to place
  before us the merit list except the publication in the newspaper that
F candidates were s~kcted on the basis of the merit. In view of the finding
  recorded by the High Court that no merit list was prepared and in spite
  of the opportunity having been given, the Government failed to substantiate
  that the merit list was in fact prepared, we find it difficult to accept the
  awrments made in the affidavit. Under these circumstances, we proceed
  on the premise that the merit list has not been prepared and the selection
G came to be made on the basis of educational qualifications required for
  the job and in some Departments on the basis of pay scales available at
  that time. In this scenario, the question arises : whether appointment of the
   candidates is valid in law? When the Service Commission or the Board
  selects the candidates, the normal criteria required preparation of a list of
H the candidates selected in the order of their merit and then recommend to
                         STATE v. KAUSHAL KISHORE SINGH                      839

      the Government for appointment to the post advertised for. In that behalf,    A
      it is always open to the executive to allot the selected candidates, in the
      particular categories of services in the order of merit prepared and recom-
      mended as per the procedure and application of roster and reservation and
      on the basis thereof appointments be made to the respective Departments.
      Of course, it would be subject to the fulfulment of the qualifications
      prescribed for the post. Since the Government has not satisfied us dS to
                                                                                    B
      how it adopted this rationale, the appointment of selected candidat.:s by
      pick and choose is an arbitrary exercise of the power. Under these cir-
      cumstances, the arbitrariness is writ large.

             Accordingly, the recommendations in respect of the allotment and
      appointment of selected candidates is per se illegal. It is true that the High
                                                                                    c
      Court has pointed out that options are to be called for and the selection
      is to be made on the basis of the options given. We do not find that the
      criteria laid down by the High Court is correct in law. Even if options were
      called for and given, it is not mandatory for the Government to accept
      options of the candidates and make appointment to the posts. Asking for D
      option of candidates is only a discretionary matter and the Government is
      not bound to select the candidates on the basis thereof. Under these
      circumstances, the candidates who applied for, though opted for, have no
      acquired rights, much less indefeasible and absolute right for selection or
      appointment to a particular post. As stated earlier, the Government have E
      to prescribe an objective and rational method or manner of allotment of
      the candidates selected to the Department, depending upon their job
      necessity and requirement. Since the objective and rational criterion was
      not followed, we decline to interfere with the impugned order passed by
      the High Court.
                                                                                    F
            The Government is directed to act in the light of the law laid down
      in this order. This direction would apply only to those cases where the
      appointments have not become final and the pending matters would be
      disposed of in the light of this direction.

               The appeal is disposed of accordingly but without any order as to
                                                                                    G
      costs.

.::   G.N.                                                   Appeal disposed of.