UNION OF INDIAversusB. VALLUVAN AND ORS.

                             UNION OF INDIA                                     A
                                      v.
                         B. VALLUVAN AND ORS.

                            OCTOBER 19, 2006

               (S.B. SINHA AND DAL VEER BHANDARI, JJ.]                          B


      Service law:

      Selection process-Panel for future vacancies-Life of panel is
ordinarily one year and can be extended only if statutory rule permits it to C
do so-Once panel stands exhausted upon filling up of all the posts, the
question of filling future vacancy from exhausted panel would not arise.

      Jurisdiction:

       Review jurisdiction-Held: ls limited-High Court, has power of review, D
but it must be exercised within the framework of Section 114 read with Order
47 of the Code of Civil Procedure-On facts, High Court erred in allowing
the review application without at first finding out whether there was an error
on the face of the record.

      The Department of Personnel and Training issued a circular letter dated
                                                                                E
26.6.1992 stating that whereas validity of panel prepared against promotion
quota is generally limited to one year, there is no fixed life of the panel against
direct recruitment post, that the panel was prepared for direct recruitment to
take care of immediate vacancies and those which are likely to occur in the
near future and that a maximum of 10"/o additional persons can be kept on F
the panel against the e~isting vacancies at the time of preparation of panel or
vacancies likely to occur in the near future.

      Three vacancies fot: the post of Pharmacist were notified in the year
1999. First respondent alo,ng with others applied for the post. A select list
of three candidates was prePfired on the basis of the recommendations made G
by the Selection Committee on 27.5.1999. The said three persons accepted
the offer and joined services. The Selection Committee, however, made a list
of 19 candidates for future appo.intments occurring if any, in the said year.
The said select list, according to Appellant, was prepared in violation of the
                                     755                                        H
    756                     SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A Circular dated 26.6.1992. All the three vacancies in the post of Pharmacist
     having been filled up, the said panel was directed to be cancelled.

           Several candidates purported to be aggrieved therewith, filed an Original
    Application before the Central Administrative Tribunal (CAT), contending that
    as the panel was drawn for future vacancies, they were entitled to be appointed
B   against the vacancies occurring thereafter and that as several new posts were
    likely to be created and/or likely to fall vacant in the near future, they should
    be directed to be appointed in such vacancies. During pendency of the said
    application, another advertisement was issued for filling up of one vacancy,
    which occurred in the year 2000. Interview was also held and the said vacancy
C   had also been filled up. CAT rejected the Original Application, which was
    questioned by filing Writ Petition before High Court. Division Bench
    dismissed the said Writ Petition holding that the panel stood lapsed the
    moment notified vacancies had been filled up.

          First Respondent filed review application which was allowed by another
D Division Bench of High Court by impugned judgment. Hence the present
    appeal

         Appellant contended that as the life of the panel was one year, the
    impugned judgment cannot be sustained.

E        Respondent contended that keeping in view the fact that Respondent No.1
    has been appointed in August, 2005, pursuant to the judgment of the High
    Court, this Court may not exercise its discretionary jurisdiction under Article
    136 of the Constitution of India.

          Allowing the appeal, the Court
F
        HELD: 1. The Recruitment process, must be commensurate with the
  statute or the statutory rule operating in the field. The advertisement was
  made for three posts. It was not indicated therein that another panel for filling
  up of the future vacancies was to be prepared by the Selection Committee. In
  the select list prepared by the Selection Committee, the name of 1st
F Respondent was at Serial No.4. Recommendations were made containing the
  names of 19 persons for future vacancies. Only because a panel has been
  prepared by the Selection Committee, the same by itself, would not mean that
  the same should be given effect to irrespective of the fact that there was no
  such rule operating in the field. The Selection Committee was bound to comply
G with the selection process only in terms of the extant rules. It was bound to
                            U.0.1. v. B. VALLUVAN                           757
 follow the stipulations made in the advertisement itself. Even in the A
 advertisement it was not indicated that a select list would be prepared for filling
 up future vacancies. The Selection Committee, having been appointed only
 for recommending the names of suitable candidates, who were fit to be
 appointed, could not have embarked upon the question as regards likelihood
 of future vacancy.1761-G, H; 762-A-CI
                                                                                  B
       2. The Review Bench of the High Court posed unto itself a wrong
 question. It did not say how an error apparent on the face of the record had
 been committed. It did not assign sufficient or cogent reason to hold as to
 how the Original Application before the CAT would have been maintainable if
 the petitioners had no existing legal right. The 1st Respondent did not have
 any legal right to be appointed. He filed an application pursuant to the said C
 advertisement. It is not his case that his application had not been considered.
 He did not raise any plea of unfair treatment. No malajide was also alleged.
                                                                        1762-D)

        3. Life of a panel must be for a limited period. It is governed by the D
 statutory rules. From the circular letter dated 26.6.1992 it is evident that
 ordinarily the life of the panel should be for one year. What had been indicated
 therein was that the panel prepared for recruitment should not be unduly
 inflated. Vacancies should ordinarily be notified keeping in view the immediate
 future need. It has categorically been stated that only upto a maximum of
 10% additional persons were kept in a panel against the existing vacancies E
 which were likely to occur in future. The said circular letter was meant to
 be applied in a case where, thus, more than JO vacancies were notified. It did
 not have any universal application. By reason of the said circular letter, the
 ordinary life of the panel was not to be extended. Thereby no new practice or
 rule was brought into force. 1762-E-G]                                           p
      Madan Lal & Ors. v. State ofJ & K & Ors., (1995) 3 SCC 486; State of
 UP. & Ors. v. Harish Chandra & Ors., (1996) 9 SCC 309 and Surinder Singh
 & Ors. v. State of Punjab & Anr., 11997) 8 SCC 488, referred to.

        4. The Division Bench of the High Court committed a serious error in G
  entering into !he merit of the matter while exercising its review jurisdiction.
  The court's jurisdiction to review its own judgment is limited. The High
  Court, indisputably, has a power of review, but it must be exercised within the
  framework of Section 114 read with Order 47 of the Code of Civil Procedure.
· The High Court did not arrive at a finding that there existed an error on the
  face of the record. The review of the High Court was not only contrary to the H
    758                    SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A circular letter issued by Union of India, but also contrary to the general
     principles of law. 1764-H; 765-A-Bl

           5. The life of a panel can be extended only by the State and that too if
    the statutory rule permits it to do it. The High Court ordinarily would not
    extend the life of a panel. Once a panel stands exhausted upon filling up of
B   all the posts, the question of enforcing a future panel would not arise. It was
    for the State to accept the said recommendations of the Selection Committee
    or reject the same. As has been noticed hereinbefore, all notified vacancies
    as also the vacancy, which arose in 2000, had also been filled up. As the
    future vacancy had already been filled up in the year 2000, the question of
C   referring back to the panel prepared in the year 1999 did not arise. The
    impugned judgment, therefore, cannot be sustained. [765-C-DI

          6. Coming now to the plea that Respondent No.I has been appointed in
    August, 2005, is not of much significance. If he has been appointed pursuant
    to the order of the High Court, the same invariably would be subject to the
D   result of this appeal. Respondent No.I did not have any legal right to be
    appointed even out of the said panel. His position was at Serial No.4 and not
    even at Serial No.I. Therefore, there were three persons in the panel above
    him. The High Court, therefore, committed a manifest error in issuing the
    impugned directions. Sympathy alone, cannot be a ground to allow the High
E   Court judgment to be sustained, although, it is ex facie illegal. [765-E-F)

          Maruti Udyog Ltd. v. Ram Lal & Ors., [200512 SCC 638, relied on.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4554 of2006.

          From the Judgment and Final Order dated 10.11.2003 of the High Court
F   of Calcutta, Circuit Bench at Port Blair in Review Application R.V.W. No. 8/
    2003.

          8. Datta, S. Wasim A. Qadri and D.S. Mabra for the Appellants.

          Gaurav Jain and Abha Jain for the Respondents.
G
          The Judgment of the Court was delivered by

          S.8. SINHA, J. Leave granted.

          The Department of Personnel and Training, Andaman & Nicobar
H Administration (Administration) issued a circular letter, stating :
                   U.0.1. v. B. VALLUVAN [S.B. SINHA, J.]                 759

       "As you may be aware, as per the instructions of the Government of A
       India, whereas validity of panel prepared against promotion quota is
       generally limited to one year, there is no fixed life of the panel against
       direct recruitment post. According to the Govt. of India's instructions
       therefore 3 panel prepared for direct recruitment should not be unduly
       inflated and should take care of immediate vacancies and those which
       are likely to occur in the near future. A maximum of ten per cent B
       additional persons can be kept on the panel against the existing
       vacancies at the time of preparation of panel or vacancies likely to
       occur in the near future. Such a provision has been kept so that
       Government can obtain the services of better qualified persons if they
       become available in due course of time.                                    c
            It has however been observed that these instructions of the
       Government of India are not even followed by all the Departments of
       this Administration while preparing panel for direct recruitment as well
       as for promotion.
                                                                                  D
           It is, therefore, brought to the notice of all the Departments that
       in future panel for promotion as well as for direct recruitment against
       various categories of posts should be prepared strictly in accordance
       with the instructions of the Govt. of India issued from time to time."

      Three vacancies for the post of Pharmacist were notified in the year E
1999. Applications were invited from the eligible candidates. In the
advertisement issued therefor, it was categorically stated :

                             "EMPLOYMENT NEWS

       Applications are invited from the eligible local candidates for the post F
       of Pharmacist under the A & N Health Department, Port Blair
       (a) No. of vacancies :- 3 (three)"

      The 1st Respondent together with others, pursuant to or in furtherance
of the said advertisement filed application. Interviews therefor were held in
1999. A select list of three candidates was prepared on the basis of the G
recommendations made by the Selection Committee on 27.5.1999. The said
three persons accepted the offer and joined services. The Selection Committee,
however, made a list of 19 candidates for future appointments occurring if any,
in the said year. The said select list, according to Appellant, was prepared
in violation of the purported statutory instructions dated 26.6. 1992. All the H
    760                    SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A three vacancies in the post of Pharmacist having been filled up, the said panel
    was directed to be cancelled by an order dated 7.12.1999. Several candidates
    purported to be aggrieved by and dissatisfied therewith, filed an Original
    Application before the Central Administrative Tribunal, inter alia, contending
    that as the panel was drawn for future vacancies, they were entitled to be
B   appointed against the vacancies occurring ·thereafter. It was furthermore
    contended that as several new posts were likely to be created and/or likely
    to fall vacant in the near future, they should be directed to be appointed in
    such vacancies. During pendency of the said application, another
    advertisement was issued on 17.5.2000 for filling up of one vacancy, which
    occurred in the year 2000. Interview was also held on 26.6.2000 and the said
C   vacancy had also been filled up. The said fact was brought on record by
    Appellants herein. By an order dated 13.9.2002, the Tribunal rejected the said
    Original Application, inter alia, opining :

           " .... .In the present case, however only 3 candidates had figured in the
           select list for immediate appointment and the panel of candidates in
D          the waiting list had been cancelled on the ground that one of the
           candidates in that panel was not qualified and that the preparation of
           the panel was not in accordance with the Government of India/A&N
           Administration instructions."

          It was further observed :
E
           " ..... When only three vacancies had been advertised, the preparation
           of a waiting list containing 19 candidates does not appear to be either
           legal or reasonable. Besides in this case, against the three advertised
           vacancies, the three selected candidates have been appointed. In any
           case, the contention of the applicants that this panel should be
F          operated even beyond a period of one year is rejected as they
           themselves have stated that it should be operated for one year which
           is as per the rules. In the facts and circumstances of the case; the
           impugned order of cancellation issued by the respondents dated
           7.12.1999 cannot be held to be arbitrary, illegal or against the rules
G          which justifies any interference in the matter."

         Thi: said order came to be questioned before the Calcutta High Court.
    A Division Bench of the said Court dismissed the said writ petition, stating:

               "Our attention was not drawn to any statutory or otherwise rules .
H
                        U.0.1. v. B. VALLUVAN [S.B. SINHA. J.]                761
            authorizing the authority concerned to keep the panel alive after A
            supplying the notified vacancies. That being the position, it is well
            settled in law that the panel stood lapsed the moment notified vacancies
            had been filled up."

          A review application was filed by the Ist Respondent and by reason
    of the impugned judgment, the same was allowed by another Division Bench          B
    of the said Court, stating :

                "Having regard to the unusual nature of the case, we have devoted
            considerable time to the submissions made on behalf of the parties,
            both in support of the application and against it, and we are convinced
            that the order of the Division Bench sought to be reviewed suffers C
            from errors apparent on the face of the record. We are of the view
            that while expressing the correct legal position, the Division Bench
            appears to have applied the said provisions erroneously in the facts
            of this case, since the list of selected candidates was not confined
            only to the immediate vacancies but also in respect of future vacancies D
            as well. We are inclined to agree with Mr. Roy that the first three
            names were in respect of immediate vacancies and the object of
            preparing a list other names was for the definite purpose of filling up
            future vacancies. It is not as if there was no intention that the panel
            was to be utilized at a later stage and was meant only for filling up
            the three immediate vacancies, which were then existing under one E
            and the same selection."

          Mr. B. Datta, the learned Additional Solicitor General appearing on
    behalf of Union of India submitted that as the life of the panel was one year,
    the impugned judgment cannot be sustained.
                                                                                      F
          Mr. Gaurav Jain, learned counsel appearing on behalf of Respondents,
    on the other hand, urged that keeping in view the fact that Respondent No. I
    has been appointed in August, 2005, pursuant to the judgment of the High
    Court, this Court may not exercise its discretionary jurisdiction under Article
    136 of the Constitution of India.
                                                                                      G
           Recruitment process, as is well known, must be commensurate with the



'
    statute or the statutory rule operating in the field. We have noticed hereinbefore,
    advertisement was made for three posts. It was not indicated therein that
    another panel for filling up of the future vacancies was to be prepared by the
    Selection Committee. In the select list prepared by the Selection Committee, H
    762                     SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A the name of !st Respondent was at Serial No.4. Recommendations were made
    containing the names of 19 persons for future vacancies. Only because a
    panel has been prepared by the Selection Committee, the same by itself, in
    our opinion, would not mean that the same should be given effect to
    irrespective of the fact that there was no such rule operating in the field. The
B   Selection Committee was bound to comply with the selection process only in
    terms of the extant rules. It was bound to follow the stipulations made in the
    advertisement itself. Even in the advertisement it was not indicated that a
    select list would be prepared for filling up future vacancies. The Selection
    Committee, having been appointed only for recommending the names of
    suitable candidates, who were fit to be appointed, could not have embarked
C   upon the question as regards likelihood of future vacancy.

        The Review Bench of the High Court posed unto itself a wrong question.
  It did not say how an error apparent on the face of the record had been
  committed. It did not assign sufficient or cogent reason to hold as to how
  the Original Application before the Tribunal would have been maintainable if
D the petitioners had no existing legal right. The Ist Respondent did not have
  any legal right to be appointed. He filed an application pursuant to the said
  advertisement. It is not his case that his application had not been considered.
  He did not raise any plea of unfair treatment. No ma/a fide was also alleged.

         Life of a panel, as is well known, must be for a limited period. It is
E governed by the statutory rules. From the circular letter dated 26.6.1992 it is
  evident that ordinarily the life of the panel should be for one year. What had
  been indicated therein was that the panel prepared for recruitment should not
  be unduly inflated. Vacancies should ordinarily be notified keeping in view
  the immediate future ·need. It has categorically been stated that only upto a
F maximum of 10% additional persons were kept in a panel against the existing
  vacancies which were likely to occur in future. The said circular letter was
  meant to be applied in a case where, thus, more than 10 vacancies were
  notified. It did not have any universal application. By reason of the said
  circular letter, the ordinary life of the panel was not to be extended. Thereby
  no new practice or rule was brought into force.
G
         In Madan Lal & Ors. v. State of J & K & Ors., [1995] 3 SCC 486, this
    Court held:

               "It is no doubt true that even if requisition is made by the
            Government for 11 posts the Public Service Commission may send
H           merit list of suitable candidates which may exceed 11. That by itself
                   U.0.1. v. B. VALLUVAN [S.B. SINHA,.I.)               763
       may not be bad but at the time of giving actual appointments the merit A
       list has to be so operated that only 11 vacancies are filled up, because
       the requisition being for 11 vacancies, the consequent advertisement
       and recruitment could also be for 11 vacancies and no more. It is easy
       to visualise that if requisition is for 11 vacancies and that results in
       the initiation of recruitment process by way of advertisement, whether B
       the advertisement mentions filling up of 11 vacancies or not, the
       prospective candidates can easily find out from the Office of the
       Commission that the requisition for the proposed recruitment is for
       filling up 11 vacancies. In such a case a given candidate may not like
       to compete for diverse reasons but if requisition is for larger number
       of vacancies for which recruitment is initiated, he may like to compete. C
       Consequently the actual appointments to the posts have to be
       confined to the posts for recruitment to which requisition is sent by
       the Government. In such an eventuality, candidates in excess of 11
       who are lower in the merit list of candidates can only be treated as
       wait listed candidates in order of merit to fill only the eleven vacancies
       for which recruitment has been made, in the event of any higher D
       candidate not being available to fill the 11 vacancies, for any reason.
       Once the 11 vacancies are filled by candidates taken in order of merit
       from the select list will get exhausted, having served its purpose.

     * * * *                                                                   E
           In the present case as the requisition is for 11 posts and even
       though the Commission might have sent list of 20 selected candidates,
       appointments to be effected out of the said list would be on 11 posts
       and not beyond 11 posts, as discussed by us earlier. This contention
       will stand accepted to the extent indicated hereinabove."               F
      In State of U.P. and Ors. v. Harish Chandra & Ors., [1996] 9 SCC 309,
it was opined :

            "Coming to the merits of the matter, in view of the Statutory Rules
       contained in the Rule 26 of the Recruitment Rules the conclusion ts G
       irresistible that a select list prepared under the Recruitment Rules has
       its life only for one year from the date of the preparation of the list
       and it expires thereafter. Rule 26 is extracted hereinbelow in extenso:

       "26. Appointment by appointing authority. - The select list referred to
       in sub-rules (6) and (7) of Rule 23 shall be forwarded by the Selection H
    764                     SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A           Committee to the appointing authority mentioning the aggregate marks
            obtained at the selection by each candidates. The name of general and
            reserve candidates shall be arranged by the appointing authority in
            a common list according to the merit of the candidates and the
            appointment shall be offered in the order in which the names are
            arranged in the list shall hold good for a period of one year from the
B           date of selection."

                 Notwithstanding the aforesaid Statutory Rule and without applying
            the mind to the aforesaid Rule the High Court relying upon some
            earlier decisions of the Court came to hold that the list does not expire
            after a period of one year which on the face of it is erroneous. Further
c           question that arises in this context is whether the High Court was
            justified in issuing the mandamus to the appellant to make recruitment
            of the Writ Petitioners. Under the Constitution a mandamus can be
            issued by the Court when the applicant establishes that he has a legal
            right to the perfonnance of legal duty by the party against whom the
D           mandamus is sought and said right was subsisting on the date of the
            petition. The duty that may be enjoined by mandamus may be one
            imposed by the Constitution or a Statute or by Rules or orders having
            the force of law. But no mandamus can be issued to direct the
            Government to refrain from enforcing the provisions of law or to do
            something which is contrary to law."
E
         Yet again, in Surinder Singh & Ors. v. State of Punjab & Anr., [1997]
    8 sec 488, it was stated :

                "It is in no uncertain words that this Court has held that it would
            be an improper exercise of power to make appointments over and
F           above those advertised. It is only in rare and exceptional circumstances
            and in emergent situation that this rule can be deviated from. It should
            be clearly spelled out as to under what policy such a decision has
            been taken. Exercise of such power has to be tested on the touchstone
            of reasonableness. Before any advertisement is issued, it would,
G           therefore, be incumbent upon the authorities to take into account the
            existing vacancies and anticipated vacancies. It is not as a matter of
            course that the authority can fill up more posts than advertised."

        The Division Bench of the High Court committed a serious error in
  entering into the merit of the matter while exercising its review jurisdiction.
H The court's jurisdiction to review its own judgment, as is well known, is
                   U.O.l. v. B. VALLUVAN [S.B. S!NHA.J.]                765

limited. The High Court, indisputably, has a power of review, but it must be A
exercised within the framework of Section 114 read with Order47 of the Code
of Civil Procedure. The High Court did not arrive at a finding that there
existed an error on the face of the record. In fact, the High Court, despite
noticing the argument advanced on behalf of Union of India that the Ist
Respondent had no legal right to be appointed, proceeded to opine that the B
panel prepared for filling up of future vacancies should be given effect to.
The review of the High Court was not only contrary to the circular letter
issued by Union of India, but also contrary to the general principles of law.
The life of a panel ordinarily is one year. The same can be extended only by
the State and that too if the statutory rule permits it to do it. The High Court
ordinarily would not extend the life of a panel. Once a panel stands exhausted C
upon filling up of all the posts, the question of enforcing a future panel would
not arise. It was for the State to accept the said recommendations of the
Selection Committee or reject the same. As has been noticed hereinbefore,
all notified vacancies as also the vacancy which arose in 2000 had also been
filled up. As the future vacancy had already been filled up in the year 2000,
the question of referring back to the panel prepared in the year 1999 did not D
arise. The impugned judgment, therefore, cannot be sustained.

      Coming now to the plea of learned counsel that Respondent No.I has
been appointed in August, 2005, in our opinion, is not of much significance.
If he has been appointed pursuant to the order of the High Court, the same E
invariably would be subject to the result of this appeal. Respondent No. I did
not have any legal right to be appointed even out of the said panel. His
position was at Serial No.4 and not even at Serial No. I. Therefore, there were
three persons in the panel above him. The High Court, therefore, committed
a manifest error in issuing the impugned directions. Sympathy alone, in our
opinion, cannot be a ground to allow the High Court judgment to be sustained, F
although, it is exfacie illegal. {See Maruti Udyog Ltd. v. Ram Lal & Ors.,
[2005] 2 sec 638].}

      For the reasons aforementioned, the impugned judgment cannot be
sustained. It is set aside accordingly. The appeal is allowed. In the facts
and circumstances of the case, however, there shall be no order as to costs. G

D.G.                                                       Appeal allowed.