Holding

A candidate on a select list does not acquire an indefeasible right to appointment; the appointing authority must act bona fide and may adjust vacancies, and the Tribunal’s order directing appointment was unsustainable.

Summary

The respondent, K.V. Vijeesh, was placed at rank 172 in the select list for Diesel Assistant vacancies of the Southern Railways but was not appointed while lower‑ranked candidates were. He approached the Central Administrative Tribunal, which directed the Railways to consider him for any existing or future vacancy. The Railways appealed, arguing that the select list was not prepared in order of merit and that the number of vacancies had been reduced, allowing withdrawal of the bottom 25 candidates. The Supreme Court held that inclusion in a select list does not confer an indefeasible right to appointment; the State may adjust vacancies but must act bona fide and respect comparative merit. Examining the records, the Court found the respondent was indeed at the bottom of the list and that appointments were made according to merit, so the Tribunal’s order was unsustainable. Consequently, the appeal was allowed and the Tribunal’s order set aside.

Issues considered

Whether a candidate whose name appears in a select list acquires a right to appointment in an existing or future vacancy in Government service.
Whether the Central Administrative Tribunal was justified in directing the Railways to appoint the respondent despite a reduction in vacancies.

Subjects

Service lawRecruitmentSelect listRight to appointmentAdministrative lawCentral Administrative TribunalComparative meritBona fideArbitrary decisionRailway recruitment

Judgment

UNION OF INDIA AND ORS. A
v.
K.V. VIJEESH

FEBRUARY 27, 1996

(AM. AHMADI, CJ, M.K. MUKHERJEE AND B
K. VENKATASWAMI, JJ.)

Service Law:

Select list-Candidates on panel-Acquire no indefeasible right to ap- C
pointment-Unless the Rule provides State is under no legal duty to fill all
vacancies-But State must act bona fide.

Railways-Diesel Assistant~--Recruitment of-Written Examina-
tion-Viva voce-Panel-Candidate on panel not given appointment-Ap-
plication before Tribunal for appointment-Direction by Tribunal to consider D
appointment in any existing or next available vacancy-Held not justified-On
facts held appointments were made according to comparative merits of the
candidates-Rejection of respondent's claim who was at the bottom of the
select list held not arbitrary.

Shankarsan Dash v. Union of India, AIR (1991) SC 1612, relied .on. E·
Prem Prakash v. Union of India, AIR (1984) SC 1831, explained and
distinguished.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4032 of
~ F
From the Judgment and Order dated 24.11.94 of the Central Ad-
ministrative Tribunal at Ernakulam in Kerala in O.A No. 146(5 of 1993.

R: Venugopal Reddy, AD.N. Rao and AK. Sharma for the Appel-
lan~. G
T.T. Kunhikannan for the Respondent.

The following Order of the Court was delivered :

Special leave granted. Heard the learned counsel for the parties. H'
1077
1078 SUPREME COURT REPORTS (1996) 2 S.C.R.

A By its Employment Notice No. 1/90 the Railway Recruitment Board
invited applications for 308 vacancies in the post of Diesel Assistants in
Palghat and Trivandrum Divisions of the Southern Railways. Among others
the respondent applied for the above post, and on his success in the written
examination and viva voce test held for the purpose, the Board included
B his name in the select list, published under Notification No. 4/91 dated
March 25, 1991 and forwarded the same to the Southern Railway Ad-
ministration recommending appointments therefrom. As in spite of his
such inclusion in the panel he was not being given any appointment, he
filed an application before the Central Administrative Tribunal, Er-
nakulam, contending inter alia, that even though in the select list his i'ank
C was 172 he had not been given appointment but persons lower in rank were
appointed. Accordingly, he prayed for necessary directions for his appoint-
ment as a Diesel Assistant in accordance with his position in the panel.

In contesting the application the appellant-Railways contended that
D subsequent to the issuance of the notification dated March 25, 1991 the
Railways had taken a policy decision that the requirement of Diesel
Assistant staff had to be reduced owing to impending absorption of Steam
surplus staff. As a result, the bottom 25 persons in the select list had to be
withdrawn from ·the list recommended for employment. The Railways
E further contended that the select list was not prepared in order of merit
and that the respondent's contention that his rank in the list was 172 was
incorrect. Indeed, according to the Railways, the respondent was at the
bottom of the list and consequently his name, besides others', had to be
withdrawn on .the reduction of the number of vacancies.

F
While accepting the Railways' contention that the select list was not
prepared in order of merit and conceding their right to adjust the number
of vacancies according to requirement or according to policy, the Tribunal
observed that there must be some protection given to those who had been
declared successful. The Tribunal further observed that the least that was
G expected of the Railw~ys was that such of the candidates who were
successful but could not be accommodated as a result of reduction in the
number of vacancies could be employed subsequently when the vacancies
arose. In making the above observations the Tribunal quoted and relied
upon the following passage from the judgment of this Court in Prem
H Prakash v. Union of India, AIR 1984 SC 1831 :
V.0.1.v. KV. VIJEESH 1079
Po-
• "Once a person is declared successful according to the merit list A
of selected candidates which is based on the declared number of
vacancies the appointing authority has the responsibility to appoint
him even if the number of vacancies undergoes a change after his
name has been included in the list of selected candidates."

-- With the above observations the Tribunal directed the Southern B
Railways to consider the respondent for appointment as Diesel Assistant
in any existing or next available vacancy on the basis that his name had
been recommended by the Railway Recruitment Board for appointment.
The above order of the Tribunal is under challenge in the present appeal

- at the instance of the Railways. C
In the context of the facts of th~ instant case the only question which
falls for determination in this appeal is whether a candidate whose name
appears in the select list on the basis of a competitive examination acquires
a right of appointment in Government service in an existing or a future
vacancy. The above question has been answered by a Constitution Bench D
of this Court in Shankarsan Dash v. Union of India, AIR (1991) SC
1612 = [1991J 3 sec 47 with the following words :-

"It is not correct to say that if a number of vacancies are notified
for appointment and adequate number of candidates are found fit, E
the successful candidates acquire an indefeasible right to be ap-
pointed which cannot be legitimately denied. Ordinarily the
notification merely amounts to an invitation to qualified candidates
to apply for recruitment and on their selection they do not acquire
any right to the post. Unless the relevant reauitment mies so
indicate, the State is under no legal duty to fill up all or 01iy 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 vacancies or any of them are filled up, the State is bound to
respect the comparative merit of the candidates, as reflected at the G
recrnitment test, and no discrimination can be pennitted."

(emphasis supplied)

In view of the above pronouncement of this Court the order of the
Tribunal directing absorption of the respondent solely on the ground that ff

(
t
1080 SUPREME COURT REPORTS [1996] 2 S.C.R.
J
A his name was included in the select list cannot be sustained. The reliance
of the Tribunal on the judgment .of this Court in Prem Prakash's case
(supra), particularly, the above quot~d passage was wholly misplaced for,
in that case, the notification regarding recruitment specifically providing
that once a person was declared successful according to the merit list of
B selected candidates the appointing authority had the responsibility to ap-
point him even if the number of vacancies had undergone a change after
his name had been included in the list of selected candidates. It further
p.rovided that where seiected candidates were awaiting appointment,
recruitment should either be postponed till all the selected candidates were
-
accommodated or, alternatively, intake for the next recruitment reduced by
C the number of candidates awaiting appointment. Relying solely on the
above notification this Court made the earlier quoted observations in Prem
Prakash's (supra). In absence of any such rules governing the appointment
of the respondent, the Tribunal was therefore not justified in passing the
impugned order.
--
D Though the above discussion of ours was sufficient to set aside the
impugned order, we had, - keeping in view the observations of this Court
in Shank01'San Dash's case (supra) - called for and looked into the relevant
records of the Railways to ascertain whether the Railway Administration
had acted arbitrarily in rejecting the respondent's claim and, for that
E matter, whether appointments had been made according to the compara-
tive merits of the candidates or not. The records not only indicate that the
contention of the Railways that the respondent was placed at the bottom
of the list is correct but also that the appointments have been made
according to the comparative merits of the candidates. It cannot, therefore,
be said that the rejection of the respondent's claim was arbitrary or
F discriminatory.

For the foregoing discussion we allow this appeal and set aside the
impugned order of the Tribunal. There will be no order as to costs.

T.N.A. Appeal allowed.

,.