Bihar State Electricity Board Vs. Suresh Prasad & Ors  Insc
118 (25 February 2004)
V.N. Khare & S.H. Kapadia. Kapadia, J.
short question which arises for determination in this appeal is:
the High Court was justified in law in giving direction to the appellant to
fill up the vacancies which remained unfilled due to candidates not turning up
to join the post?"
Employment Notice No. 3/86 advertisement was issued on 15th December, 1986 whereby 100 vacant posts of
Operators and 70 vacant posts of Assistant Operators were notified for
appointment. In the said advertisement the qualification prescribed for the
post of operator was diploma in Electrical and Mechanical Engineering having at
least 70% marks. A written test was held by the Bihar State Electricity Board
for selection of candidates on 29.11.1987. The oral interviews were held on 27-28th August, 1988. Some Assistant Operators of Bihar
State Electricity Board (Appellant herein) filed a writ petition in the High
Court bearing CWJC No. 6352/88 challenging the proposed direct recruitment in
the posts of Operators as contrary to the Standing Orders. This petition was
admitted on 18.11.1989 but dismissed on 19.4.1991. However, during the pendency
of the said writ petition a Committee was constituted by the appellant on
21.3.1991 to submit a report regarding adjustment to be made in the matter of
appointment of Operators and Assistant Operators. On 30.1.1992, a report was
submitted by the Committee suggesting that it was not possible to absorb
Assistant Operators as Operators. Despite the said report a fresh advertisement
was issued vide Employment Notice No. 6/92 on 25.11.1992 calling for
applications from candidates to fill up 50 posts of Operators. In terms of the
said advertisement dated 25.11.1992, the earlier advertisement dated 15.12.1986
was cancelled. The advertisement dated 25.11.1992 was challenged vide civil
writ jurisdiction case No. 12820/92. By judgment and order dated 23.3.1994, the
High Court came to the conclusion that the appellant should fill up 50% of the
vacancies in the post of Operators from amongst the candidates who had applied
pursuant to the advertisement dated 15.12.1986 and the remaining 50% of the
existing vacancies in the post of Operators should be filled from candidates
who had applied pursuant to the advertisement dated 25.11.1992. In the light of
the above directions of the High Court the Appellant-Electricity Board notified
the selection of 22 candidates pursuant to advertisement No. 3/86 dated
15.12.1986 and 25 candidates against advertisement No. 6/92 dated 25.11.1992.
out of 22 candidates selected for appointment vide advertisement No. 3/86 dated
15.12.1986 only 4 joined.
18 vacancies remained unfilled as candidates did not turn up. Consequently
respondents Nos. 1 to 7 herein (employees) who had applied for appointment
pursuant to advertisement notice No. 3/86 dated 15.12.1986 and who had
qualified in the written test and oral interviews and who were on the merit list
at serial no. 23 and downwards moved the High Court by way of CWJC Nos. 3732
and 9213/95 inter alia contending that since 18 out of 22 selected candidates
did not join the said respondents Nos. 1 to 7 should be given appointment. This
relief was granted by the High Court. Being aggrieved the Bihar State
Electricity Board came by way of present appeal to this Court.
judgment and order passed by the Division Bench of this Court the civil appeal
filed by the Electricity Board was allowed and the impugned order of the High
Court was set aside. Thereafter review petition No. 1073 of 1999 was filed. By
order dated 18.11.2000 the review petition was allowed and the order of the
Division Bench of this Court dated 4.12.1999 was recalled.
the Civil Appeal No. 6084/98 has now come once again before this Court.
Swarup, learned counsel appearing on behalf of the appellant submitted that
candidates in the merit list have no indefeasible right to appointment even if
a vacancy exists. In this connection he placed reliance on the judgment of this
Court in the He contended that the High Court had erred in giving direction to
the Appellant-Electricity Board to appoint respondent Nos. 1 to 7 against 18
vacancies which remained unfilled due to candidates not turning up though they
were offered appointments. He contended that out of 22 candidates selected for
appointment pursuant to advertisement No. 3/86 dated 15.12.1986 18 vacancies
could not be filled as the candidates did not turn up. He submitted that in the
merit list respondents one to seven were at serial no. 23 and below. That the
Board had approved the panel of 22. That respondent Nos. 1 to 7 did not figure
in the panel.
submitted that in terms of the judgment of the High Court given earlier dated
23.3.1994 the Appellant-Board recommended names of successful candidates under
Employment Notice No. 3/86 and Employment Notice No. 6/92 and consequently on
selection the Board notified the panel of 22 candidates pursuant to advertisement
No. 3/86 and 25 candidates against advertisement No. 6/92. In the circumstances
he submitted that the High Court by the impugned judgment had erred in
directing the Appellant-Board to appoint respondents one to seven who were not
in the panel. It was further contended that the judgment of the Division Bench
of this Court dated 4.12.1998 was based on correct appreciation of facts and
therefore the order of recall was not warranted.
K. Singh, learned counsel appearing on behalf of respondent Nos. 1 to 7
submitted that pursuant to the advertisement No. 3/86 respondents one to seven
were put on the merit list at serial no. 23 onwards in the descending order. He
contended that when 22 posts were notified by the appellant against
advertisement dated 15.12.1986 out of which 18 did not join and therefore the
vacancies could have been filled up by appointing the candidates at serial no.
23 and lower thereto. He submitted that the High Court was, therefore, right in
directing the Appellant-Board to fill up the vacancies under advertisement No.
3/86 of 22 posts of Operators by proceeding in the descending order from 23 and
beyond. In support of his arguments, Mr. Singh has relied upon the judgments of
this Court in Jai Narain Ram v. State of U.P. & Ors. reported in 1996 (1)
SCC 332 and Purushottam v. Chairman, MSEB reported in 1999 (6) SCC 49.
find merit in this appeal preferred by the Board. In the case this Court that
even if number of vacancies are notified for appointment and even if adequate
number of candidates are found fit the successful candidates do not acquire any
indefeasible right to be appointed against existing vacancies. That ordinarily
such 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. It was further held that the State is under no legal duty to fill up
all or any of the vacancies unless the relevant recruitment rules indicate. In
the present case we are not shown any such relevant recruitment rules. In the
present case pursuant to the direction of the High Court dated 23.3.1994, the
appellant took steps for filling up 25 vacancies in the post of Operators from
advertisement No. 3/86 and the remaining 25 vacancies from advertisement No.
6/92. The results were notified on 29.4.1994 on the notice board. The Board
recommended names of successful candidates under advertisement No. 3/86 and
advertisement No. 6/92. Out of 22 candidates selected by the Board for
appointment under advertisement No. 3/86 18 candidates did not turn up. At this
stage it is important to note that respondent Nos. 1 to 7 had applied for
appointment under advertisement No. 3/86 dated 15.12.1986 and they had
qualified but they were placed at serial no. 23 onwards in the descending
order. As stated above a panel of 22 candidates was prepared for appointment
under advertisement No. 3/86 and respondent Nos. 1 to 7 fell beyond cut off
number. We are not shown any statutory recruitment rules which require the
Appellant-Board to prepare a waiting list in addition to the panel. The
argument advanced on behalf of respondent Nos. 1 to 7 was in effect that when
18 candidates failed to turn up the appellant was bound to offer posts to
candidates in the waiting list.
such rule has been shown to us in this regard. In our view, the India (supra) squarely applies to the
facts of this case. Further there was no infirmity in the judgment of this
Court delivered on 4.12.1998 and in our view with respect there was no need to
recall the said judgment. Before concluding we may state that the judgments of
this Court in Jai Narain Ram v. State of U.P. & Ors. and Purushottam v.
Chairman, MSEB (supra) have no application to the facts of this case.
result, the appeal is allowed and the impugned orders of the High Court are set
aside. Consequently, CWJC Nos. 3732/95 and 9213/95 are dismissed.
facts and circumstances, the parties are directed to bear their own costs.