Supreme Court of India
STATE OF ORISSA & ANR.versusRAJKISHORE NANDA & ORS.
- Citation
- 2010 INSC 337
- Decided
- 3 June 2010
- Disposal
- Appeal(s) allowed
- Bench
- B S CHAUHAN
Holding
A select list does not create any indefeasible right of appointment; vacancies must not be filled beyond the notified number, and courts or tribunals cannot compel appointments from an exhausted or expired select list.
Summary
The State of Orissa advertised 15 junior clerk vacancies, later increased to 33, and prepared a select list of 66 candidates. Candidates whose names remained on the list but were not appointed filed petitions before the Central Administrative Tribunal seeking appointment, and the Tribunal ordered that all remaining candidates be appointed. The Orissa High Court modified this, directing appointment only to those who approached the Tribunal, which the State appealed. The Supreme Court held that inclusion in a select list does not confer an indefeasible right of appointment and that vacancies cannot be filled beyond the number notified, except in rare, emergent situations with a rational policy decision. Consequently, once the selection process for the advertised vacancies is exhausted, the select list expires and courts or tribunals lack jurisdiction to compel further appointments. The Court set aside both the Tribunal’s and the High Court’s orders, allowing the appeal.
Issues considered
- Whether a candidate whose name appears in a select list acquires a vested right to appointment.
- Whether vacancies can be filled beyond the number of notified vacancies under the recruitment rules.
- Whether a tribunal or court can direct the State to appoint candidates from an unexhausted or expired select list.
- Whether the State may deviate from the rule against exceeding notified vacancies in exceptional circumstances.
Subjects
recruitmentselect listvacancyappointmentservice lawadministrative lawconstitutional lawArticle 14Article 16tribunal jurisdiction
Judgment
[2010] 7 S.C.R. 301
STATE OF ORISSA & ANR. A
v.
RAJKISHORE NANDA & ORS.
(Civil Appeal No. 2808 of 2008)
JUNE 3, 2010
B
[DR B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
Service Law:
Recruitment - Select List prepared - Appointment made
on the notified vacancies - Candidates, who were not C
appointed, but whose names were in the Select List,
approaching Tribunal seeking direction for appointment -
Tribunal directing the State to give appointment to all the
candidates in the Select List - High Court, in appeal directing
to give appointment only to the candidates who approached D
the tribunal - On appeal, held: Filling up vacancies, over the
notified vacancies is not permissible as it amounts to filling
up future vacancies -Such rule can be deviatetJ only in
exceptional circumstances and in emergent situ~tion only
after adopting policy decision based on some rational - A E
person who.se name appears in the Select List 'does not
acquire any indefecisible right of appointment -- Select List not
to be treated as a reservoir for the purpose of appointments
- Vacancies to be filled up as per statutory rules and in
conformity with constitutional mandate - Once the selection F
process in respect of certain number of vacancies is over, it
is not open to offer appointment to persons from the
unexhausted Select List - Courts/Tribunals are not competent
to issue direction to initiate selection process to fill up
vacancies - Orissa Ministerial Service (Method of G
Recruitment to Posts of Junior Clerks in the District Offices)
Rules, 1985 - rr. 6, 11 (1) and 12.
To fill up 33 vacancies of Junior Clerks a Select List
of 66 candidates was published. Appointments were
301 H
302 SUPREME COURT REPORTS [2010] 7 S.C.R.
A made. Respondents, whose names appeared in the
Select List and were not offered appointment, filed
applications before Central Administrative Tribunal
seeking direction to offer them appointment. The Tribunal
concluded that appointments were to be offered to all the
B candidates till the entire Select List stood exhausted.
Tribunal directed to offer appointment to all the left-over
candidates in the Select List.
In the writ petition, High <;;ourt modified the order of
the Tribunal, directing the appellants to offer appointment
C to those who had approached the tribunal. Hence the
appeal.
Allowing the appeal, the Court
HELD: 1. Filling up the vacancies over the notified
D vacancies is neither permissible nor desirable, for the
reason, that it amounts to "improper exercise of power
and only in a rare and exceptional circumstance and in
emergent situation, such a rule can be deviated an·d. such
a deviation is permissible only after adopting policy
E decision based on some rational", othe..Wise the exercise
would be arbitrary. Filling up of vacancies over the notified
vacancies amounts to filling up of future vacancies and
thus, not permissible in law. [Para 10) [310-G-H; 311-A-B]
State of Bihar and Ors. vs. The Secretariat Assistant S.E.
F Union 1986 and Ors. AIR 1994 SC 736; Prem Singh and Ors.
vs. f-/aryana State Electricity Board and Ors. (1996) 4 SCC
319; Ashok Kumar and Ors. vs. Chairman, Banking Service
Recruitment Board and Ors. AIR 1996 SC 976; Surinder
Singh and Ors. vs. State of Punjab and Ors. AIR 1998 SC 18;
G Rakhi Ray and Ors. vs. High Court of Delhi AIR 2010 SC 932;
State of Punjab v. Raghbir Chand Sharma and Ors. AIR 2001
SC 2900; Mukul Saikia and Ors. v. State of Assam and Ors.
AIR 2009 SC 747, relied on.
H 2. A person whose name appe~rs in the Select List
STATE OF ORISSA & ANR. v. RAJKISHORE NANDA 303
& ORS. ETC.
does not acquire any indefeasible right of appointment. A
Empanelment at the best is a condition of eligibility for
the purpose of appointment and by itself does not
amount to selection or create a vested right to be
appointed. The vacancies have to be filled up as per the
statutory rules and in conformity with the constitutional B
mandate. Select List cannot be treated as a reservoir for
the purpose of appointments. [Paras 13 and 15] [312-8-
C; G-H]
Shankarsan Dash vs. Union of India AIR 1991 SC 1612;
Asha Kaul and Anr vs. State of J & Kand Ors. (1993) 2 sec C
573; Union of India vs. S.S Uppal AIR 1996 SC 2340; Bihar
Public Service Commission vs. State of Bihar AIR 1997 SC
2280; Simancha/ Panda vs. State of Orissa and Ors. (2002)
2 SCC 669; Punjab State Electricity Board and Ors. vs. ·
Malkiat Singh (2005) 9 SCC 22; Union of India and ..Ors.' vs. D
Kali Dass Batish and Anr. AIR 2006 SC 7~9; 'Divisional
Forest Officers and Ors. vs. M. Ramalinga IReddy AIR 2007
SC 2226; Subha B. Nair and Ors. vs. ,State of Kera/a and Ors.
(2008) 7 SCC 210; Mukul Saikia an1cJ Ors. vs. State of Assam
and Ors. AIR 2009. SC 747; S.S. Balu and Anr. vs. State of E
Kera/a and Ors. (2009) 2 sec 479, relied on.
3. No relief can be granted to the candidate if he
approaches the court after expiry of the Select List. If the
selection process is over, Select List has expired and
appointments had been made, no relief can be granted F
by the court at a belated stage. [Para 15] [312-H; 313-A-
B]
J. Ashok Kumar vs. State of Andhra Pradesh and Ors.
(1996) 3 SCC 225; State of Bihar and Ors. vs. Md. Kalimuddin G
and Ors. AIR 1996 SC 1145; State of U. P. and Ors. vs. Harish
Chandra and Ors. AIR 1996 SC 2173; Sushma Suri vs.
Government of National Capital Territory of Delhi and Anr.
(1999) 1 SCC 330; State of UP. and Ors. vs. Ram Swarup
Saro) (2000) 3 SCC 699; K. Thulaseedharan vs. Kera/a State H
304 SUPREME COURT REPORTS [2010] 7 S.C.R.
A Public Service Commission, Trivendrum and Ors. (2007) 6
SCC 190; Deepa Keyes vs. Kera/a State Electricity Board and
Anr. (2007) 6 SCC 194; Subha B. Nair and Ors. vs. State of
Kera/a and Ors. (2008) 7 sec 21 o, relied on.
4. Orissa Ministerial Service (Method of Recruitment
8 to Posts of Junior Clerks in the District Offices) Rules,
1985 provide for determining the number of vacancies
and holding competitive examination ordinarily once in
a year. Select list prepared so is also valid for one year.
In the instant case, 15 vacancies were advertised with a
C clear stipulation that number of vacancies may increase.
The authorities had taken a decision to fill up 33
vacancies, thus, select list of 66 persons was prepared.
It is also evident from the record that some more
appointments had been made over and above the 33·
D determined vacancies~ Thus, once the selection process
in respect of number of vacancies so determined came
to an end, it is no more open to offer appointment to
persons from the unexhausted list. It is exclusive
prerogative of the employer/State Administration to initiate
E the selection process for filling up vacancies occurred
during a particular year. There may be vacancies available
but for financial constraints, the State may not be in a
position to initiate the selection process for making
appointments. Bonafide decision taken by the appointing
F authority to leave certain vacancies unfilled, even after
preparing the Select List cannot be assailed. The Courts/
Tribunals have no compet~nce to issue direction to the
State to initiate selection process to fill up the vacancies.
[Para 16) [313-D-H; 314-A]
G 5. As the appointments had been made as per the
select list prepared in 1995 and selection process came
to an end, there was no occasion for the Tribunal to
entertain the applications in 1997, 1998 and 1999 for the
simple reason that once the number of vacancies
H determined are filled, the selection process came to an
'
STATE OF ORISSA & ANR. v. RAJKISHORE NANDA 305
& ORS. ETC.
end, no further appointment could be made from 1995 A
panel. The purpose of making the list of double of the
vacancies determined is to offer the appointment to the
persons from the waiting list in case persons who are
offered appointment do not join. But it does not give any
vested right in favour of the candidates whose names B
appeared therein. [Para 17] [314-B-D]
6. Rule 11 (1) of the Rule~, 1985 did not provide
originally to prepare the list double the number of
determined vacancies and it was only for preparing the
list containing the names equal to the number of C
vacancies advertised/determined. In such a fact-situation,
the select list could have been prepared only containing
33 names i.e. equivalent to the number of vacancies
determined and the selection process would come to an
end automatically whenever 33 candidates are appointed. · D
However, if the appellant had prepared a list double the
number of vacancies determined, that would not create
any vested right in favour of the respondents. Thus,
Tribunal committed grave error issuing direction to offer
appointments to all the left-over candidates. [Para 18) E
(314-E-.G]
7. The view taken by the High Court that a cumulative
reading of Rules 6 and 11(1) of the Rules, 1985 vis-a-vis
the Select List which contained the names of 66
successful candidates leads to conclusion that the F
number of vacancies at the time of publication of the
Select list was 66 cannot be held to be in consonance
with law. More so, if the State has committed an error in
preparing the merit list containing the names of
candidates double the number of vacancies determined, G
that would not mean that Select List has become
immortal and all those persons whose names appeared
in the list would be offered appointment even after expiry
of the life of Select List. (Paras 21 and 22] [315-E-H; 316-
A-C] . H
306 SUPREME COURT REPORTS [2010] 7 S.C.R.
A Case Law Reference:
AIR 1994 SC 736 Relied on Para 10
(1996) 4. sec 319 Relied on Para 10
AIR 1996 SC 976 Relied on Para 10
B
AIR 1998 SC 18 Relied on Para 10
AIR 2010 SC 932 Relied on Para 10
AIR 2001 SC 2900 Relied on Para 11
c AIR 2009 SC 747 Relied on Paras 12 and 14
AIR 1991 SC 1612 Relied on Para 14
(1993) 2 sec 573 Relied on Para 14
D AIR 1996 SC 2340 Relied on Para 14
AIR 1997 SC 2280 Relied on Para 14
(2002) 2 sec 669 Relied on Para 14
E (2005) 9 sec 22 Relied on Para 14
AIR 2006 SC 789 Relied on Para 14
AIR 2007 SC 2226 Relied on Para 14
(2008) 1 sec 210 Relied on Paras 14 and 15
F
(2009) 2 sec 479 Relied on Para ~4
(1996) 3 sec 225 Relied on Para 15
AIR 1996 SC 1145 Relied on Para 15
G AIR 1996 SC 2173 Relied on Para 15
(1999) 1 sec 330 Relied on Para 15
(2000) 3 sec 699 Relied on Para 15
H
STATE OF ORISSA & ANR. v. RAJKISHORE NANDA 307
& ORS. ETC.
(2007) 6 SCC 190 Relied on ~ara '15 A
(2007) 6 SCC 194 Relied on Para 15
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2008 of 2808.
8
From the Judgment & Order dated 26.10.2005 of the High
Court of Orissa at Cuttack in OJC Nos. 10582, 11262, 11265,
11268, 11269, 11271, 11273, 11274, 11275, 11279, 11280,
11282, 11324 & 11326 of 2000.
Janaranjan Das, Swetaketu Mishra, P.P. Nayak for the C
Appellants.
H.P. Sahu, Abhisth Kumar, J.P. Mishra, Shankar Divate
for the Respondents.
D
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN 1. The present appeal has been
preferred against the Judgment and Order of the Orissa High
Court dated 26.10.2005 passed in OJC Nos. 10582, 11262,
11268, 11269, 11271, 11273, 11275, 11279, 11280, 11324 E
& 11326 of 2000, by which the High Court dismissed the Writ
Petition filed by the State of Orissa/Appellant against the
Judgment and order of the Orissa Administrative Tribunal,
Cuttack (hereinafter called as, "the Tribunal") dated 7.4.2000
issuing direction to the appellant to appoint all the persons F
whose names appeared in the panel for the selection on the
post of Junior Clerk held .in 1995.
2. Facts and circumstances giving rise to the present
appeal are that in order to fill up 15 posts of Junior Clerks in G
District Sonepur, applications were invited by an advertisement
dated 25.06.1995. The advertisement made it clear that
number of vacancies could be increased. The respondents
applied in pursuance of the said advertisement along with large
number of persons and written examination was held in
H
308 SUPREME COURT REPORTS [2010] 7 S.C.R.
A accordance with the Orissa Ministerial Service (Method of
Recruitment to Posts of Junior Clerks in the District Offices)
Rules, 1985 (hereinafter called as, "Rules, 1985"). Before the
selection process could complete, the number of vacancies
were increased from 15 to 33 and as per the requirement of
B Rules, 1985, a merit list of 66 candidates was published on
6.11.1995. The appointments were made on the said posts.
The respondents, whose names appeared in the merit list and
could not be offered appointment, being much below in the
merit list, filed applications before the Tribunal praying for a
c direction to the State to offer them appointments. The Tribunal,
vide its Judgment and Order dated 7.4.2000, came to the
conclusion that appointments were to be offered to all the
candidates till the entire select list stood exhausted. Therefore,
the Tribunal directed to offer appointment to all left over
candidates in the select list of 1995.
0
3. Being aggrieved, the State preferred the writ petition
against the said common Judgment and order of the Tribunal
in the High Court of Orissa and the High Court,\vide Judgment
and order dated 26.10.2005, modified the order of the Tribunal
E issuing direction to the appellants to offer appointment to those
persons who had approached the Tribunal. Hence, this appeal.
4. Sh. Janaranjan Das, learned counsel appearing for the
appellant-State, has submitted that number of vacancies cannot
F be filed up over and above the number of vacancies advertised.
Once the advertised vacancies are filled up, the selection
process stands exhausted and the selection process comes
to an end. Where the Rules provide to determine the vacancy
yearly, life of select list cannot be more than one year and once
G the life of the select list expires, no appointment can be offered
from the panel so prepared. The Tribunal and the High Court
committed an error issuing directions to appoint the candidates
from the unexhausted part of the select list, which is not
permissible in law. Thus, the appeal deserves to be allowed.
H
STATE OF ORISSA & ANR. v. RAJKISHORE NANDA 309
& ORS. ETC. [DR. B.S. CHAUHAN, J.]
5. Per contra, Sh. H.P. Sahu and Sh. J.P. Mishra, learned A
counsel appearing for the respondents vehemently opposed
the appeal contending that if the selection is not held in
subsequent years, candidates whose names appear in the
panel have to be offered appointments. Therefore, no
interference is required with the impugned Judgment and order B
of the High Court. The appeal lacks merit and thus, liable to
be dismissed.
6. We have considered the rival submissions of the learned
counsel for the parties and perused the recorq.
c
7. Relevant Rules from Rules, 1985, which are necessary
to be considered for deciding the appeal, read as under :-
"Rule 2 Definitions - In these rules unless the context
otherwise requires - D
................... "Year" means a calendar year.
Rule 3 Recruitment
Recruitment to the posts shall be made through direct E
recruitment by means of a competitive examination to be
held ordinarily once in every year.
Rule 6 Notification of vacancies
On the receipt of the requisite information from the District F
Officers the Chairman of the Board shall notify the total
number of vacancies to the lo.cal employment exchange
. indicating therein the number of reseNed vacancies for the
purpose of conducting the competitive examination.
G
Rule 11 (1) Allotment of successful candidates
The Chairman of the Board shall ensure completion of
evaluation of answer papers and preparation of the list of
successful candidates who have qualified by such
standards as will be decided by him ordinarily within two H
310 SUPREME COURT REPORTS [2010] 7 S.C.R.
A months from the date of examination. The candidates'
names shall be arranged in order of merit on the basis of
marks secured by them in I
the examination conducted by
the Board. This list of successful candidates drawn in order
of merit shall not ordinarily exceed double the number of
B vacancies as determined under Rule 6.
Rule 12 The list prepared under Sub-rule (1) of Rule 11
shall remain valid for a period of one year from the date
of publication of the same or till drawal of the next year's
list, whichever is earlier.
c
8. If the aforesaid relevant Rules are read together, the
cumulative effect thereof comes to that after determining the
number of vacancies taking into consideration the expected
vacancies, the same shall stand notified to local Employment
D Exchange and advertise the same through other means. The
select list, after holding the test as required under the Rules,
1985, shall be prepared and published, which shall contain the
names of candidates, double the number of vacancies so
advertised/determined.
E
9. Rule 14 merely enables the State Government to relax
the eligibility conditions by recording reasons in respect of any
class or categories of persons in public interest.
10. It is a settled legal proposition that vacancies cannot
F be filled up over and above the number of vacancies advertised
as "the recruitment of the candidates in excess of the notified
vacancies is a denial and deprivation of the constitutional right
under Article 14 read with Article 16(1) of the Constitution",,of
those persons who acquired eligibility for the post in question
G in accordance with the statutory rules subsequent to the date
of notification of vacancies. Filling up the vacancies over the
notified vacancies is neither permissible nor desirable, for the
reason, that it amounts to "improper exercise of power and only
in a rare and exceptional circumstance and in emergent
H situation, such a rule can be deviated and such a deviation is
STATE OF ORISSA & ANR. v. RAJKISHORE NANDA 311
& 'ORS. ETC. [DR. B.S. CHAUHAN, J.]
permissible only after adopting policy decision based on some A
rational", otherwise the exercise would be arbitrary. Filling up
of vacancies over the notified vacancies amounts to filling up
of future vacancies and thus, not permissible in law. (Vide State
of Bihar & Ors. Vs. The Secretariat Assistant S.E. Union 1986
& Ors. AIR 1994 SC 736; Prem Singh & Ors. Vs. Haryana B
State Electricity Board & Ors. ( 1996) 4 SCC 319; Ashok
Kumar & Ors. Vs. Chairman, Banking Service Recruitment
Board & Ors. AIR 1996 SC 976; Surinder Singh & Ors. Vs.
State of Punjab & Ors. AIR 1998 SC 18; and Rakhi Ray &
Ors. Vs. High Court of Delhi AIR 2010 SC 932). C
/
11. In State of Punjab v. Raghbir Chand Sharma and Ors.
AIR 2001 SC 2900, this Court examined the case where only
one post was advertised and the candidate whose name
appeared at Serial No. 1 in the select list joined the post, but
subsequently resigned. The Court rejected the contention that D
post can be filled up offering the appointment to the next
candidate in the select list observing as under:
"With the appointment of the first candidate for the only
post in respect of which the consideration came to be E
made and select list prepared, the panel ceased to exist
and has outlived its utility and at any rate, no one else
in the panel can legitimately contend that he should
have been offered appointment either in the vacancy
arising on account of the subsequent resignation of the F
person appointed from the panel or any other vacancies
arising subsequently."
12. In Muku/ Saikia and Ors. v. State of Assam and Ors.
AIR 2009 SC 747, this Court dealt with a similar issue and held
that "if the requisition and advertisement was only for 27 posts, G
the State cannot appoint more than the number of posts
advertised". The Select List "got exhausted when all the 27
posts were filled". Thereafter, the candidates below the 27
appointed candidates have no right to claim appointr:nent to any
vacancy in regard to which selection was not held. The H
312 SUPREME COURT REPORTS (2010] 7 S.C.R.
A "currency of Select List had expired as soon as the number
of posts advertised are filled up, therefore, the appointments
beyond the number of posts advertised would amount to filling
up future vacancies" and said course is impermissible in law.
13. A person whose name appears in the select list does
8
not acquire any indefeasible right of appointment.
Empanelment at the best is a condition of eligibility for purpose
of appointment and by itself does not amount to selection or
create a vested right to be appointed. The vacancies have to
be filled up as per the statutory rules and in conformity with the
C constitutional mandate.
14. A Constitution Bench of this Court in Shankarsan
Dash Vs. Union of India, AIR 1991 SC 1612, held that
appearance of the name of a candidate in the select list does
D not give him a right of appointment. Mere inclusion of
candidate's name in the select list does not confer any right to
be selected, even if some of the vacancies remain unfilled. The
candidate concerned cannot claim that he has been given a
hostile discrimination. (see also Asha Kaul & Anr. Vs. State
E of J & K & Ors., (1993) 2 SCC 573; Union of India Vs.
S.S. Up pal, AIR 1996 SC 2340; Bihar Public Service
Commission Vs. State of Bihar AIR 1997 SC 2280; Simanchal
Panda Vs. State of Orissa & Ors., (2002) 2 SCC 669; Punjab
State Electricity Board & Ors. Vs. Ma/kiat Singh (2005) 9 SCC
F 22; Union of India & Ors. Vs. Kali Dass Batish & Anr. AIR 2006
SC 789; Divisional Forests Officers & Ors. Vs. M. Ramalinga
Reddy AIR 2007 SC 2226; Subha B. Nair & Ors. Vs. State of
Kera/a & Ors., (2008) 7 SCC 210; Mukul Saikia & Ors. Vs.
State of Assam & Ors., (2009) 1 SCC 386; and S.S. Batu &
G Anr Vs. State of Kera/a & Ors., (2009) 2 SCC 479).
15. Select list cannot be treated as a reservoir for the
purpose of appointments, that vacancy can be filled up taking
the names from that list as and when it is so required.
H It is the settled legal proposition that no relief can be
STATE OF ORISSA & ANR. v. RAJKISHORE NANDA 313
& ORS. ETC. [DR. B.S. CHAUHAN, J.]
granted to the candidate if he approaches the .Couri after expiry A
of the Select List. If the selection process is over, select list has
expired and appointments had been made, no relief can be
granted by the Court at a belated stage. (Vide J.Ashok Kumar
Vs. State of Andhra Pradesh & Ors., (1996) 3 SCC 225; State
· 9( Bihar & Ors. Vs. Md. Kalimuddin & Ors., AIR 1996 SC B
11'45;, State of UP. & Ors. Vs. Harish Chandra & Ors., AIR .
1996 SC 2173; Sushma Suri Vs. Government of National
Capital Territory of Delhi & Anr., (1999) 1 SCC 330; State of
U.P. & Ors. Vs. Ram Swarup Saroj, (2000) 3 SCC 699; K.
Thulaseedh;f1ran Vs. Kera/a State Public Service C
Commission, Trivendrum & Ors., (2007) 6 SCC 190; Deepa
Keyes -Vs.- Kera/a State Electricity Board & Anr., (2007) 6
SCC 194; and Subha 8. Nair & Ors. (supra).
16. The instant case is required to be examined in view
of the aforesaid settled legal proposition. The Rules, 1985 D
provide for determining the number of vacancies and holding
competitive examination ordinarily once in a year. Select list
prepared so also valid for one year. In the instant case, 15
vacancies were advertised with a clear stipulation that number
of vacancies may increase. The authorities had taken a E
decision to fill up 33 vacancies, thus, select list of 66 persons
was prepared. It is also evident from the record that some more
appointments had been made over and above the 33
determined vacancies. Thus, once the selection process in
respect of number of vacancies so determined came to an end, F
it is no more open to offer appointment to persons from the
unexhausted list. It is exclusive prerogative of the employer/
State Administration to initiate the selection process for filling
up vacancies occurred during a particular year. There may be
vacancies available but for financial constraints, the State may G
not be in a position to initiate the selection process for making
appointments. Bonafide decision taken by the appointing
authority to leave certain vacancies unfilled, even after
preparing the select list cannot be assailed. The Courts/
Tribunals have no competence to issue direction to. the State H
314 SUPREME COURT REPORTS [2010] 7 S.C.R.
A to initiate selection process to fill up the vacancies. A candidate
only has a right to be considered for appointment, when the
vacancies are advertised and selection process commences,
if he possess the requisite eligibility.
17. As the appointments had been made as per the select
8
list prepared in 1995 and selection process came to an end,
there was no occasion for the1 r
Tribunal to entertain the
Applications in 1997, 1998'and 1999 for the simple reason that
once the oµmber' -~f vacancies determined are filled, the
selectioh process came to an end, no further appointment could
. C, "6~ made from 1995 panel. The purpose of making the list of
double of the vacancies determined is to offer the appointment
to the persons from the waiting list in case persons who are
offered appointment do not join. But it does not give any vested
right in favour of the candidates whose names appeared
D therein.
18. It appears from the Judgment of the Tribunal that Rule
11 (1) of the Rules, 1985 did not provide originally to prepare
the list double the number of determined vacancies and it was
E only for preparing the list containing the names equal to the
number of vacancies advertised/determined. In such a fact-
situation, the select list could have been prepared only
containing 33 names i.e. equivalent to the number of vacancies
determined. In such a fact-situation, selection process would
F come to an end automatically whenever 33 candidates are
appointed. However, if the appellant had prepared a list double
the number of vacancies determined, that would not create any
vested right in favour of the respondents. Thus, Tribunal
committed grave error issuing direction to offer appointments
to all the left over candidates.
G
19. The Tribunal held as under:-
"In this case by preparing the panel far exceeding the
number of vacancies, the Rules have been violated. For
H this lapse on the part fo the Collector, the candidates who
STATE OF ORISSA & ANR. v. RAJKISHORE NANDA 315
& ORS. ETC. [DR. B.S. CHAUHAN, J.]
have been subjected to a rigorous selection at more than A
one stage, should not be penalised ............. The validity
of the select J/st has expired long since. Both learned
counsel for the applicant and the learned Government
Advocate concede that no further recruitment has been
conducted by the Collector, Sonepur. During this B
intervening period of four years vacancies must be arisen
due to promotion, retirement, creation of new posts etc.
in different offices." (Emphasis added)
20. The Tribunal, after recording the finding of fact that life C
of select list had expired, held that as the selection could not
be held in subsequent years, thus, candidates whose narnes1
appeared in the panel should be offered appo.intnient by
granting relaxation of Rules. Issuance of such a'<:iirection is not
permissible in law as no appointment can be made from the
panel after expiry of the life of select lis{ D
21. The High Court has concluded as under :-
"Here the advertisement stipulated that there were
vacancies and the vacancy position might go up. The
E
select list prepared admittedly contained the names of 66
successful candidates. A cumulative reading of Rules 6 &
11 (1) of the OMS Rules, 1985 vis-a-vis the select list which
contained the names of 66 successful candidates leads
to an irresistible conclusion that the number of vacancies
at the time of publication of the select list was 66. the stand F
of the State before this Court is that under the impression
that the select list should contain double the number of
vacancies, a lsit of 66 candidates was published. But then,
if the said statement is accepted, the vacancies that
existed at the time of publication of the select list would G
have been 33. But it appears that the total number of
candidates already appointed is 40 ......... The submission
of the State that as one year had expired from the date of
publication of the select list, the same had spent its validity
H
316 SUPREME COURT REPORTS [2010] 7 S.C.R.
A cannot also be accepted. If vacancies were available, the
candidates selected but illegally not sponsored for
appointment should not suffer."
In view of the above, the High Court directed to offer the
appointment to the persons whose names appeared in the
8
panel and had approached the Tribunal.
22. The aforesaid view taken by the High Court cannot be
held to be in consonance with law. More so, if the State has
committed an error in preparing the merit list containing the
C names of candidates double the number of vacancies
determined, that would not mean that select list has become
immortal and all those persons whose names appeared in the
list would be offered appointment even after expiry of the life
of select list.
D
23. In view of the above, the Judgment and order impugned
hereinabove cannot be sustained in the eyes of law. The appeal
is allowed. The Judgments and orders of the Tribunal dated
7.4.2000 and the High Court dated 26.10.2005 are set aside.
E No order as to costs.
K.K.T. Appeal allowed.
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