VIJOY KUMAR PANDEYversusARVIND KUMAR RAI & ORS.

                        [2013) 4 S.C.R. 121


                      VIJOY KUMAR PANDEY                                A
                                   v.
                   ARVIND KUMAR RAI & ORS.
                  (C.ivil Ap.peal No. 1310 of 2013)

                        FEBRUARY 13, :2013
                                                                        B
              [T.S. °THAKUR 1'ND M.Y. EQBAL,. JJ.]

             Service Law - Selection - School Service Commission
   · - Post of Headmaster - No panel/select list of candidates
      prepared by the 'commission in accordance with the statutory c
      regulations '."'" Effect of - Held: Since no panel was published, ,
      no tecommendat(on or appointment could be· claimed. by any
    . one of the candidates competing for the post concerned -
      Preparation and publication of a panel was the least which
       any candidate seeking appointment on the basis thereof was D
       required to establish - .Publication of such a panel was
       absolutely essential not only because the entire process was
       regufated by statutory regulations but also in the interest of
     · transparency and probity in matters concerning appointments
       to offices under the State and in matters affec.ting rights of the E -
       citizen,s in discharge of governmental fuf]ctions - Since no
·... pane{-as envisaged under the provisions of the regulations
       ever came. into existence, claim by respondent for
       appointment on the basis of such a non-existent panel was
       untenable as the panel itself was stillborn - Directions issued F
       by Supreme Court keeping in view the peculiar facts and
       circumstances of the case - West Bengal School Service
       Commission (Procedure for selection of persons for
       ·appointment to the· post of teachers including Head Masters/
       Head Mistresses Superintendent of Senior Madarasa in G
       recognized non-.Government Aided Schools and procedure
       for conduct of business. of the Commission) Regulations,
        1988.

        Against the vacant post of a Head.master, the School
                                  121                                   H
    122     SUPREME COURT REPORTS             [2013] 4 S.C.R.


A Service Commission short listed three candidates for
   consideration. 'K', one of. the candidates found ineligible
  questioned the rejection of his candidature in Writ
  Petition No.6117 of 2004 filed before the High Court and
  obtained an interim order staying publication of the panel
B for the post of Headmaster. In 2009 'K' withdrew the
  petition. A Single Judge of the High Court (Dipankar
  Datta, J.) while dismissing the writ petition as withdrawn
  vacated all interim orders but directed vide order 12th
  March, 2009 that the period during which the panel could
c not be operated due to the interim order passed in the
  writ petition should be excluded for computing the life of
  the panel.

      The School Service Commission took no further
  steps in the matter nor was the panel published. This led
D to the filing of Writ Petition No.5866 of 2009 filed by
  respondent No.1 in which he sought a mandamus
  directing the School Service Commission to recommend
  his name for appointment against the available vacancy.
  The petition was dismissed by a Single Judge of the High
E Court (Dipankar Datta, J.) by order dated 27th July, 2009
  on ground that since more than five years had elapsed
  ever since the selection process was initiated and since
  no panel had been published by the School Service
  Commission it was not possible to direct the Commission
F to appoint respondent no.1 as Headmaster of the school.

      Respondent no.1 filed appeal against order dated
  27th July, 2009 passed by Dipankar Datta, J in Writ
  Petition No.5866 of 2009. The appellant, on the other
G hand, filed appeal against order dated 12th March, 2009
  passed by Dipankar Datta, J. in Writ Petition No.6117 of
  2004. The Division Bench by order dated 29th January,
  2010 set .aside order dated 27th July, 2009 passed by
  Dipankar Datta, J. with a direction to the School Service
  Commission to act in terms of the earlier order dated 12th
H
 VIJOY KUMAR PANDEY v. ARVIND KUMAR RAI & 123
                  ORS.
Ma_rch, 2009 passed by the very same Hon'ble Judge. The    A
correctness of the judgment dated 29th January, 2010
was questioned in the instant appeal.

     The question that arose for consideration was
whether any panel of candidates had been prepared by       8
the Commission in accordance with the provisions of the
West Bengal School Service Commission (Procedure for
selection of persons for appointment to the post of
teachers including Head Masters/Head Mistresses
Superintendent of Senior Madarasa in recognized non-       C
Government Aided Schools and procedure for conduct
of business of the Commission), Regulations, 1988; and
if so, whether the same continued to be valid and
subsisting to entitle the selected candidates or any one
of them to a mandamus directing the competent authority
to make an appointment on the basis thereof.               D

    Allowing the appeal, the Court

     HELD: 1.1. In its order dated 27th July, 2009 passed
in W.P. No.5866 of 2009, Dipankar Datta, J. noticed the E
non-preparation and publication of a panel and clearly
held that since the panel has not been published, no
recommendation or appointment could be claimed by any
one of the candidates competing for the same.
Preparation and publication of a panel was the least
                                                           F
which any candidate seeking appointment on the basis
thereof was required to establish. Publication of such a
panel was absolutely essential not only because the
entire process was regulated by statutory regulations but
also because the publication was essential in the interest
of transparency and probity in matters concerning G
appointments to offices under the State and in matters
affecting rights of the citizens in discharge of
governmental functions. [Para 10] [130-D-F, G-H; 131-A]

                                                           H
    124     SUPREME COURT REPORTS             [2013] 4 S.C.R.

A       1.2. Since no panel, as envisaged under the
  provisions of the regulations, ever came into existence,
  the question of determining the life of the panel by
  excluding the period during which there was an interim
  stay in accordance with the order of Dipankar Datta, J.
B in its order dated 12th March, 2009 did not arise. It follows
  that the claim made by respondent not. for appointment
  on the basis of such a non-existent panel was untenable
  as the panel itself was stillborn. The preparation of a
  select list or a panel does not by itself entitle the
c candidatewhose name figures in such a list/panel to seek
  an appointment or claim a mandamus. No vested right is
  created by the inclusion of the name of a candidate in any
  such panel which can for good and valid reasons be
  scrapped by the competent authority alongwith the entire
  process that culminated in the preparation of such a
0
  panel. [Para 12] [132-8-E]

         1.3. Even assuming the preparation of a panel gave
    rise to any such right, since in the instant case, no panel
    had actually ever been prepared and published nor has
E   the same been produced before the High Court or before
    this Court, the direction issued to the Commission to act
    on the basis of the panel was wholly unjustified and
    unsustainable. The view taken by Dipankar Datta, J. in his
    order dated 27th July, 2009 that considerable time had
F   expired since the selection process was initiated and that
    other candidates who may have in the meantime become
    qualified for consideration may be deprived of the right
    to compete was a reason enough for the High Court to
    decline a mandamus. In the facts and circumstances of
G   the case, the Division Bench of the High Court, committed
    an error in upsetting that direction. Also there is no real
    conflict between the orders passed by Dipankar Datta, J.
    on 12th March, 2009 and that passed on 27th July 2009,
    inasmuch as the question of the adding to the life of the
H   panel the period during which there was a stay would
 VIJOY KUMAR PANDEY v. ARVIND KUMAR RAI &              125
                  ORS.
arise only if there was a panel drawn in terms of the         A
Regulations. [Para 17] [134-C-F]

    State of Andhra Pradesh & Ors. v. D. Dastagiri & Ors.
(2003) 5 SCC 373: 2003 (3) SCR 877; Shankarsan Dash v.
Union of India (1991) 3 SCC 47: 1991 (2) SCR 567; Punjab B
State Electricity Board v. Malkiat Singh (2005) 9 SCC 22:
2004 (5) Suppl. SCR 329; State of Bihar & Ors. v. Secretariat
Assistant Successful Examinees Union & Ors. (1994) 1 SCC
126: 1993 (3) Suppl. SCR 134; Director, SGT/ for Medicine
Science and Technology v. M. Pushkaran (2007) 12 SCC
465; Union of India v. Kali Dass Batish (2006) 1 SCC 779: ~-
2006 (1) SCR 261; Rakhi Ray & Ors. v. The High Court of
Delhi (2010) 2 SCC 637: 2010 (2) SCR 239 and State of
 Orissa & Anr. v. Rajkishore Nanda & Ors. 2010 (6) SCALE
 126 - relied on.
                                                              D
     2. Respondent No.1 was appointed as Headmaster
during the pendency of the litigation at the pain of
contempt proceedings against the parties. That
appointment came sometime in September 2010. Not only
because the respondent has been holding the post for          E
two years, but also because his removal would not
immediately result in any benefit either to the institution
or to the appellant, therefore, he is permitted to continue
holding the post but only till such time a fresh selection
is made against the vacancy. It is, however, made clear       F
that respondent No.1 shall be entitled to all the monetary
benefits for the period during which he actually works as
the Headmaster of the school. The fact that he so works
would not, however, create any equity in his favour nor
constitute an additional weightage in the new selection       G
process. [Paras 18, 19] [134-F-G; 135-A-B, C-D]
                    Case Law Reference:
    2003 (3) SCR 877           relied on         Para 11
    1991 (2) SCR 567           relied on         Para 13      H
    126       SUPREME COURT REPORTS             [2013] 4 S.C.R.


A         2004 (5) Suppl. SCR 329 relied on            Para14

          1993 (3) Suppl. SCR 134 relied on            Para 14

          c2001) 12 sec 465         relied on          Para 14

          2006 (1) SCR 261          relied on          Para 14
B
          2010 (~) SCR 239          relied on          Para 15

          2010 (6) SCALE 126        relied on          Para 16
     CIVIL APPELLATE JURISDICTION : Civil Appeal No.
c   1310 of 2013.

        From the Judgment & Order dated 29.01.2010 of the High
    Court at Calcutta in F.M.A. No. 1415 of 2009.

D      Mahendra Anand, Bharat Singh, Saurabh Kumar, Amit
    Pawan for the Appellant.

        Dhruv Mehta, Abhinav Singh, B.P. Yadav, Saurabh
    Sharma, Sarla Chandra for the Respondents ..

E         The Judgment of the Court was delivered by

          T.S. THAKUR, J. 1. Leave granted.

       2. This appeal by special leave is directed against the
  judgement and order dated 29th January, 2010 passed by the
F Division Bench of the High Court of Judicature at Calcutta
  whereby in FMA No.1415/2009 filed by the respondent No.1
  has been allowed, the order passed by the Single Judge of that
  Court set aside and the respondent-School Service
  Commission directed to act in terms of an earlier order dated
G 12th March 2009 passed by that Court in Writ Petition No.
  611 ?(W) of 2004. The controversy arises in the following
  backdrop.

      3. Against the vacant post of Headmaster at Howrah
H Siksha Niketan, as many as five candidates applied for
 VIJOY KUMAR PANDEY v. ARVIND KUMAR RAI &                   127
           ORS. [T.S. THAKUR, J.]
appointment to the School Service Commission, West Bengal. A
The Commission found two of those applying for the post to
be ineligible but short listed the remaining three for
consideration. Kavindra Narayan Roy, one of the candidates
found ineligible questioned the rejection of his candidature in
Writ Petition No.6117 (W) of 2004 filed before the High Court B
of Calcutta and obtained an interim order staying publication
of the panel. That order continued to remain operative for nearly
five years till 2009 when the writ petitioner-Kavindra Narayan
Roy withdrew the said petition as he had by that time attained
the age of superannuation. The Single Judge of the High Court c
of Calcutta while dismissing the writ petition as withdrawn
vacated all interim orders but directed that the period during
which the panel could not be operated due to the interim order
 passed in the writ petition should be excluded for computing
 the life of the panel.                                           D
     4. The School Service Commission, it appears, took no
further steps in the matter nor was the panel published. This
led to the filing of the two writ petitions one of which happened
to be Writ Petition No.5866 (W) of 2009 filed by respondent
No.1-Shri Arvind Kumar Rai in which the said petitioner sought      E
a mandamus directing the School Service Commission to
recommend his name for appointment against the available
vacancy. His case was that since the Rajaram Choudhary who
was placed at serial no.1 in the merit list had retired from
service, he alone could be considered for appointment as he         F
figured at serial No.2 of the list.

     5. The above petition came up before Dipankar Datta, J.
and was dismissed by an order dated 27th July, 2009 holding
that since more than five years had elapsed ever since the G
selection process was initiated and since no panel had been
published by the School Service Commission it was not
possible to direct the Commission to appoint the petitioner-Shri
Arvind Kumar Rai as Headmaster of the school. The Court
further held that during the intervening period of five years H
    128      SUPREME COURT REPORTS               [2013] 4 S.C.R.


A several other candidates would have acquired eligibility for
  consideration/appointment against the post of Headmaster of
  school and that in fairness to all of them they ought to be given
  a chance to offer their candidature. The Court further held that
  as the panel had not been published the writ petitioner could
s not claim a recommendation as of right and that discretionary
  remedy under Article 226 of the Constitution could be exercised
  only when the Court was satisfied that it was equitable to do
  so.

C         6. The appellant-Vijoy Pandey, too, in the meantime, filed
    Writ Petition No. 7310 (W) of 2009 in which he prayed for a
    direction to the respondents to rescind, cancel and withdraw
    the panel for the post of Headmaster of the school prepared
    on the basis of the interview held on 6th January, 2004. A
    Single Bench of the Calcutta High Court entertained the said
D   petition and by an order dated 4th August, 2009 directed status
    quo to be maintained regarding appointment to the post of
    Headmaster. Three appeals came to be filed in the above
    background before the Division Bench of the High Court. One
    of these appeals filed by Arvind Kumar Rai was directed
E   against order dated 27th July, 2009 passed by Dipankar Datta,
    J in Writ Petition No.5866 of 2009. The second appeal, too,
    was filed by Arvind Kumar Rai assailing order dated 4th
    August, 2009 passed by Soumitra Pal J. in Writ Petition
    No.7310 of 2009 directing status quo to be maintained. The
F   third appeal was filed by appellant-Vijoy Kumar Pandey against
    order dated 12th March, 2009 passed by Dipankar Datta, J.
    in Writ Petition No.6117 (W) of 2004 whereby the School
    Service Commission had been directed to exclude the period
    during which there was an interim order, while computing the
G   life of the panel.

         7. The first of the abovementioned three appeal was
    allowed by the Division Bench by an order dated 29th January,
    2010 setting aside order dated 27th July, 2009 passed by
    Dipankar Datta, J. with a direction to the School Service '
H
  VIJOY KUMAR PANDEY v. ARVIND KUMAR RAI &                 129
            ORS. [T.S. THAKUR, J.]
Commission to act in terms of the earlier order dated 12th        A
March, 2009 passed by the very same Hon'ble Judge. Taking
note of the said order of the Division Bench the second
mentioned appeal preferred against the interim order dated 4th
August, 2009 passed by Soumitra Pal J. was held to be
infructuous and was disposed of by the Division Bench by an       B
order dated 23rd August, 2010. The Court was of the view that
in the light of the direction issued by a coordinate Bench
directing the- School Service Commission to give effect to the
order dated 12th March, 2009 passed by the Dipankar Dutta,
J. it was not possible to give any contrary direction to the      c
Commission and that the interim order passed by the Single
Judge to that effect had lost its force on that count.

     8. As regards the appeal filed by the appellant-Vijoy Kumar
Pandey the Division Bench in its order dated 23rd August,
2010 held that in the light of the order dated 29th January, 201 O D
passed by a coordinate Bench there was no scope of
challenging order dated 12th March, 2009 passed by Dipankar
Datta, J. The Court made it clear that the appellant will be free
to seek appropriate remedy before the appropriate forum in
accordance with law. A special leave petition filed against the E
aforementioned order dated 23rd August, 2010 passed by the
Division Bench was withdrawn and was dismissed by this Court
by order dated 21st January, 2011.

     9. The present appeal assails the correctness of the         F
judgment and order dated 29th January, 2010 whereby the
Division Bench of the High Court has allowed F. M.A. No.1415
of 2009 and set aside order dated 27th July, 2009 passed by
Dipankar Datta J. in Writ Petition No.5866 (W) of 2009 with
W.P. 6117 (W) of 2004 and directed that the Commission shall      G
act in accordance with order dated 12th March, 2009 passed
by the same Hon'ble Judge in Writ Petition No.6117(W) of
2004.

    10. We have heard learned counsel for the parties at
considerable length. Even though we have retraced in detail the   H
                                I
    130      SUPREME COURT REPORTS                 [2013] 4 S.C.R.


A chequered history of the litigation between the parties the
  question that falls for determination actually lies in a narrow
  compass. The question precisely is whether any panel of
  candidates has been prepared by the Commission in
  accordance with the provisions of the West Bengal School
B Service Commission (Procedure for selection of persons for
  appointment to the post of teachers including Head Masters/
  Head Mistresses Superintendent of Senior Madarasa in
  recognized non-Government Aided Schools and procedure for
  conduct of business of the Commission), Regulations, 1988;
c and if so, whether the same continued to be valid and subsisting
  to entitle the selected candidates or any one of them to a
  mandamus directing the competent authority to make an
  appointment on the basis thereof. We must regretfully say that
  although repeated rounds of litigation have engaged the
0 attention of the High Court, the High Court has not adverted to
  the question whether a panel was indeed prepared and
  published. It is only in its order dated 27th July, 2009 passed
  in W.P. No.5866 of 2009 that Dipankar Datta, J. has noticed
  the non-preparation and publication of such a panel and clearly
E held that since the panel has not been published, no
  recommendation or appointment could be claimed by any one
  of the candidates competing for the same. We need hardly
  emphasise that preparation and publication of a panel was the
  least which any candidate seeking appointment on the basis
  thereof was required to establish. We repeatedly asked Mr.
F Dhruv Mehta, learned senior counsel appearing for Mr. Arvind
  Kumar Rai, the contesting respondent whether any such panel
  was ever prepared and published as it ought to be, having
  regard to the very nature of the procedure prescribed under the
  Regulations mentioned above. To the credit of Mr. Mehta, we
G must say that he fairly conceded that no such panel was ever
  published. Not only that, Mr. Mehta did not dispute the
  proposition, and in our opinion rightly so, that publication of such
  a panel was absolutely essential not only because the entire
  process was regulated by statutory regulations but also
H because the publication was essential in the interest of
  VIJOY KUMAR PANDEY v. ARVIND KUMAR RAI &                   131
            ORS. [T.S. THAKUR, J.]
transparency and probity in matters concerning appointments         A
to offices under the State and in matters affecting rights of the
citizens in discharge of governmental functions.

     11. We may at this stage refer to a decision of this Court
in State of Andhra Pradesh & Ors. v. 0. Dastagiri & Ors.,
                                                                  8
(2003) 5 SCC 373. In that case although the State Government
had notified the vacancies and the process of recruitment had
been initiated, the results of the interviews thus conducted were
not declared anq no select list was. published. The recruitment
process was subsequently cancelled. The respondent
candidates filed writ petitions before the High Court seeking a C
 mandamus directing the appellants to appoint them, which were
allowed. However, this Court allowed the appeals against t_he
 High Court's order, observing:

     "4. In the counter-affidavit filed _on behalf of the D
     respondents . . . it is stated that the process of selection
     was cancelled at the last stage i.e. before publishing the
     list of selected candidates on the sole ground that the
     State Government wasted to introduce prohibition and
     obviously the Government felt that there was no need of E .
     Excise Constables during imposition of prohibition in the
     State. There is serious dispute as to the completion of
     the selection process. According to the appellants, the
     selection process was not complete. No record has been
    _placed before us to show that the selection process was F
     complete, but, it is not disputed that the select list was
     not published. In para 16 of the counter affidavit, referred
     above, the respondents themselves had admitted that
     the selection process was cancelled at the last stage.. In
     the absence of publication of select list. we are inclined G
     to think that the selection process was not complete. Be
     that as it mav. even if the selection process was complete
     and assuming that onlv select list remained to be
     published. that. does not advance the case of the
     respondents for the simple reason. that even the H
    132        SUPREME COURT REPORTS              [2013] 4 S.C.R.


A         candidates who are selected and whose names find place
          in the select list. do not get vested right to claim
          appointment based on the select list ... "

                                               (emphasis supplied)
B       12. We too have at hand a situation where no panel, as is
  envisaged under the provisions of the regulations, ever came
  into existence. That being so, the question of determining the
  life of the panel by excluding the period during which there was
  an interim stay in accordance with the order of Dipankar Datta,
C J. in its order dated 12th March, 2009 did not arise. It follows
  that the claim made by respondent-Arvind Kumar Rai for
  appointment on the basis of such a non-existent panel was
  untenable as the panel itself was still born. We need not burden
  this judgment by referring to the decisions of this Court in which
D this Court has repeatedly held that the preparation of a select
  list or a panel does not by itself entitle the candidate whose
  name figures in such a lisUpanel to seek an appointment or
  claim a mandamus. No vested right is created by the inclusion
  of the name of a candidate in any such panel which can for good
E and valid reasons be scrapped by the competent authority
  alongwith the entire process that culminated in the preparation
  of such a panel.

       13. In Shankarsan Dash v. Union oflndia, (1991) 3 SCC
  47 a Constitution Bench of this Court was examining whether
F candidates declared successful in a selection process acquire
  an indefeasible right to get appointed against available
  vacancies. The contention that they do acquire such a right was
  repelled in the following words:
G         "7. It is not correct to say that if a number of vacancies
          are notified for appointment and adequate number of
          candidates are found fit. the successful candidates
          acquire an indefeasible right to be appointed which
          cannot be legitimately denied. Ordinarily the notification
H         merely amounts to an invitation to qualified candidates
  VIJOY KUMAR PANDEY v. ARVIND KUMAR RAI & 133
            ORS. [T.S. THAKUR, J.]
    to apply for recruitment and on their selection they do not     A
    acquire any right to the post. Unless the relevant
    recruitment rules so indicate. the State is under no legal
    duty to fill up all or any of the 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               B
    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 recruitment test, and
    no discrimination can be permitted."                            c
                                           (emphasis supplied)

    14. Above decision has been followed in a long line of
subsequent decisions of this Court including those rendered in
Punjab State Electricity Board v. Malkiat Singh, (2005) 9 SCC       D
22; State of Bihar & Ors. v. Secretariat Assistant Successful
Examinees Union & Ors., (1994) 1 SCC 126; Director, SCTI
for Medicine Science and. Technology v. M. Pushkaran,
(2007) 12 SCC 465; Union of India v. Kali Dass Batish, (2006)
1 SCC 779 [which is a three Judge Bench decision].                  E

    15. In Rakhi Ray & Ors. v. The High Court of Delhi, (2010)
2 SCC 637, a three-Judge Bench of this Court held:

    "... A person whose name appears in the select list does
    not acquire any indefeasible right of appointment.              F
    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 constitutional mandate .... "        G

    16. Following the decision in Shankarsan Dass case
(supra), this Court in State of Orissa & Anr. v. Rajkishore
Nanda & Ors., 2010 (6) SCALE 126 held:
                                                                    H
    134        SUPREME COURT REPORTS               [2013] 4 S.C.R.


A         "A person whose name appears in the select list does not
          acquire any indefeasible right of appointment.
          Empanelment at the ·best is a condition of eligibility fo;
          purpose of appointment and by itself does not amount
          to selection or create a vested right to .be appointed. The
B         vacancies have to be filled up as per the statutory rules
          and in conformity with the constitutional mandate. "

        17. Even assuming the preparation of a panel gave rise
   to any such right, since no panel had actually ever been
   prepared and published nor has the same been produced
C before the High Court or before us, we have no hesitation in
   holding that the direction issued to the Commission to act on
  the basis of the panel was wholly unjustified and unsustainable.
  The view taken by Dipankar Datta, J. in his order dated 27th
  July, 2009 that considerable time had expired since the
D selection process was initiated and that other candidates who
  may have in the meantime become qualified for consideration
  may be deprived of the right to compete was a reason enough
  for the High Court to decline a mandamus. In the facts and
  circumstances of the case·, the Division Bench of the High
E Court, in our view, committed an error in upsetting that direction. ·
  We also see no real conflict between the orders passed by
  Dipankar Datta, J. on 12th March, 2009 and that passed on
  27th July 2009,.inasmuch as the question of the adding to the
  life of the panel the period during which there was a stay would
F arise only if there was a panel drawn in term$ of the Regulations.

       18. We were informed by the parties that the respondent
  No.1 has been appointed as Headmaster during the pendency
  of the litigation at the pain of contempt proceedings against the
G parties. That appointment has come sometime in September
  2010 ., Since, the order passed which appears to have
  culminated in the making of the appointment is being set aside,
  the question is whether we should direct immediate removal
  of the resp~ndent or continuance of the arrangement till such
  time fresh selection process is initiated and completed in
H
  VIJOY KUMAR PANDEY v. ARVIND KUMAR RAI &                   135
            ORS. [T.S. THAKUR, J.]
accordance with law. In our opinion, not only because the            A
respondent has been holding the post for two years, but also
because his removal would not immediately result in any benefit
either to the institution or to the appellant before us, we,
therefore, permit him to continue holding the post but only till
          a
such time fresh selection is made against the vacancy.               B

      19. In the result, we allow this appeal, set aside the order
passed by the Division Bench and affirm that passed by
Dipankar Datta, J. dated 27th July, 2009 with the above
direction. We make it clear that the respondent No.1 shall be        C
entitled to all the monetary benefits for the period during which
he actually works as the Headmaster of the school. The fact
that he so works would not, however, create any equity in his
favour nor constitute an additional weightage in the new
selection process.
                                                                     D
     20. Parties are directed to bear their own costs.
B.B.B.                                          Appeal allowed.