of M.P. & Ors Vs. Sanjay Kumar Pathak
& Ors  Insc 1034 (10 October 2007)
Sinha & H.S. Bedi
W I T
H CIVIL APPEAL NOS. 1063 to 1077 OF 2005 CIVIL APPEAL NO. 5737 OF 2005 and
CIVIL APPEAL NO.4754 OF 2007 [Arising out of SLP (C) NO. 9265 OF 2004] S.B.
SINHA, J :
Leave granted in SLP.
Government of India sponsored a project commonly known
as Operation Black Board during the Eighth Plan period, i.e. 1992-1997 in terms
whereof financial clearance was to be given for appointment of Additional
Teachers in all primary / middle schools which had only one teacher in order to
improve the standard of education. With a view to implement the said project,
the State intended to appoint 7000 to 11000 teachers.
Indisputably, the matter relating to recruitment of Assistant Teachers in
Madhya Pradesh is governed by Madhya Pradesh Non-Gazetted Class III Education
Service (Non-Collegiate Service) Recruitment and Promotion Rules, 1973
(hereinafter called and referred to for the sake of brevity as said
Rules). In terms of the said Rules, the method of recruitment was to be by
holding competitive examination followed by interview. With a view to expedite
implementation of the project having regard to the fact that the same was to be
implemented within the Eighth Plan period, Rule 10(3) of the Recruitment Rules
was amended on or about 10.05.1993 by adding a proviso thereto which reads,
that in any specific circumstance of the State Government may, in consultation
with the General Administrative Department prescribe the criteria and procedure
for selection of candidates.
the aforementioned purpose, Selection Committees were constituted for
recruitment of Assistant Teachers in each and every district.
were to be made district-wise by inviting applications from the Employment
Exchanges. The Selection Committee was to prepare a panel upon considering the
eligibility criteria of the candidates concerned as also upon taking viva voce
Recruitment process was started in the State on or about 5.08.1993.
process was to be started from 13.08.1993 and was to be completed within a
period of about one month, viz., 13.08.1993 to 15.09.1993. Appointments were to
be made in phases.
these appeals, we are concerned with recruitment of 64 Assistant Teachers in
Phase 3 and 66 Assistant Teachers in Phase 4.
the recruitment process, interviews were held in Damoh District for selection
of Assistant Teachers from 1.09.1993 to 9.09.1993.
however, the validity of the amendment to Rule 10(3) of the Recruitment Rules,
one Zila Mansevi Shikshak Sangh filed an original application before
the Administrative Tribunal. The said application was marked as Application No.
2395 of 1993. An interim order was passed therein directing that no appointment
should be made to the persons selected for the appointment as Assistant
Teachers in terms of the said Scheme.
the Select List for Assistant Teachers for Damoh District was under
preparation, a telephonic information was received by the appropriate authority
as regards the interim order passed by the Tribunal. Further selection process
was directed to be stayed pursuant thereto. No Select List, therefore, was
prepared by the District Selection Committee. No tabulation was done in respect
of the interviews of the candidates and in absence of preparation of tabulation,
the Select List could not have been and was not prepared.
order dated 18.03.1994 the State Administrative Tribunal declared the said
amendment to be illegal being violative of Articles 14 and 16 of the
Constitution of India. Aggrieved thereby, the State Government and other
aggrieved candidates filed Special Leave Petitions before this Court and by an
order dated 04.01.1995, this Court stayed the said order of the Tribunal. It is
not in dispute that on 24.04.1995 the State Government issued offers of
appointments in favour of the candidates who had been selected in the year 1993
except those who had appeared in the interview before the Selection Committee
of the Damoh District. By an order dated 1.12.1997 this Court in Arun Tewari v.
Zila Mansevi Shikshak Sangh [(1998) 2 SCC 332], upheld the selection process.
Assistant Teachers filed an original application before the Tribunal for a direction
upon the State to issue appointment letters to the selected candidates. Before
the Tribunal, Appellant State specifically raised the plea that the matter
relating to recruitment of Assistant Teachers has since been entrusted to Janpad
Panchayats under the Madhya Pradesh Panchayat Raj Adhiniyam, in the existing
vacancies of the Assistant Teachers which were since then known as Samvida Shala
Shikshak Varg III and Shiksha Karmi Varg III, and teachers were appointed by
the Janpad Panchayats in December, 1995. The said application was allowed by an
order dated 19.05.1999 stating:
view of the above discussion it is directed that the aborted process of
selection in Damoh District be now completed and the select list be drawn out
as per the laid down procedure and those placed on the select list be offered
appointment after following the usual formalities for appointments under the
Government. The entire exercise of drawing out the select list and issue of
appointment orders shall be completed within two months of the date of this
order. Respondents No. 3 and 4 that is Collector and Deputy Director Education Damoh
shall be personally responsible for complying with these directions. The
Chairman of the Tribunal, however, passed a separate order observing that the defence
taken by the State that there was no vacancy for recruitment to the post of
Assistant Teacher was not acceptable. The Administrative Member of the Tribunal
expressed his views separately.
reason of the impugned judgment, the High Court has dismissed the writ petition
filed by the appellant. It, however, did not go into the merit of the matter
and based its decision on the purported peculiarity of the case. It
although took into consideration the legal question that even if a persons
name appears in the Select List, ordinarily, no right accrues but proceeded to
After hearing the learned counsel for the parties, we think that the present
cases have their own peculiarity. It is well settled in law that if the name appears
in the select list ordinarily no right accrues. There may be cases which would
depend on different facts and circumstances of the case.
not intend to dilate on that score because of the pertaining factual matrix
which are enumerated hereunder:
The State Government had taken steps to appoint 11000 Assistant Teachers in the
entire undivided Madhya Pradesh and appointments have been made in number of
districts before the Tribunal granted stay.
After the final order was passed by the Tribunal, the matter travelled to apex
Court and, thereafter, their Lordships passed the order of stay.
State Government promptly filled up the posts in respect of other districts.
The selection process in the districts of Damoh lingered and, therefore, the
persons who were in the select list or on the third phase could not get the
The persons who have rendered services for a brief period long back because of
the direction given by the Tribunal to consider their cases, they have been appointed.
The High Court restricted the matter relating to grant of relief only to the
case of the original applications directing:
The State Government shall prepare a list of candidates who had approached the
Tribunal in the original applications in the order of merit as per the select
The State Government shall offer them appointments in respect of Assistant
Teachers or equivalent posts within a reasonable period of time.
The State shall start taking action within a period of three months from today
so that bonafide of the State would be demonstrative.
The candidates who have not approached the Tribunal could not be benefited by
this order for the simple reason that he who is not vigilant loses his
Vibha Datta Makhija, learned counsel appearing on behalf of the appellant,
would submit that the High Court committed a manifest error in passing the
impugned judgment insofar as it failed to take into consideration:
respondents did not have any legal right to be appointed:
exists a distinction between two categories of candidates, viz., those in whose
favour letters of appointments had been issued but had to be cancelled in view
of the order of the Tribunal and the respondents herein whose names did not
figure in the Select List at all.
petition should not have been allowed on equity alone as it must flow from a
Prakash Shrivastava, learned counsel appearing on behalf of the respondents, on
the other hand, would submit that the Tribunal and consequently the High Court
having passed the impugned judgments in the peculiar fact situation obtaining
therein, the matter must be considered in the backdrop of the following facts:
Recruitment Rules had been struck down;
stay was operating upto 4.01.1995.
State had issued instructions directing appointment of all the successful
candidates as a result whereof the impugned judgment had been passed.
Respondents do not dispute before us that the tabulation of the marks obtained
by them was not finalized. For the purpose of selection, the marks allotted to
each of the candidates should be known to the members of the Selection
Committee. Members of the Selection Committee before preparing the Select List
were entitled to undergo a consultative process so as to enable them to arrive
at a consensus in regard to the candidates who should be appointed. As the
tabulation process itself was not completed, the question of preparing any
Select List also did not arise.
is true that after the order of stay was vacated by this Court in Arun Tewari
(supra), the State issued a circular letter dated 24.04.1995 which reads as
the above subject vide referred departmental memo, it is directed that of all
those teachers whose services were terminated should be reinstated in
compliance with the judgment of the Honble Court. In connection with this
as per reconsidered decision taken after obtaining opinion of the Advocate
General appointment should be given to all such persons who have been selected
legally under operation black board, in accordance with the rules and after
compliance of all the formalities. Remaining condition shall remain
Recruitment to the posts of Assistant Teacher is governed by statutory rules.
Rule 10 of the Rules was amended only for the purpose of implementation of the
Scheme of the Central Government Operation Black Board. It is trite law
that while the recruitment process is governed by the Rules, the same should be
scrupulously complied with. The State, having regard to the ultimate decision
rendered by this Court, was bound to reinstate those whose services had been
terminated and appoint those who had been selected legally. The condition of
selection was to remain unchanged. One of the conditions for recruitment was,
therefore, selection of the candidates.
The Tribunal as also the High Court did not call for the documents pertaining
to the selection process. No finding of fact has been arrived at that the respondents
herein were bound to be selected and consequently appointed. Whether all of
them had fared better than the other candidates who had not approached the
Tribunal had not been found. As the selection process itself was not complete,
there was nothing before the Tribunal as also the High Court to indicate that
they had acquired legal right of any kind whatsoever. Even where, it is trite,
the names of the persons appeared in the selection list, the same by itself
would not give rise to a legal right unless the action on the part of the State
is found to be unfair, unreasonable or mala fide. The State, thus, subject to
acting bona fide as also complying with the principles laid down in Articles 14
and 16 of the Constitution of India, is entitled to take a decision not to
employ any selected even from amongst the Select List. Furthermore, we have
noticed hereinbefore, that selections were made in 4 phases. It is not the
contention of the respondents that the State Government acted malafide. The
dispute, as noticed hereinbefore related to appointment in Phase 3 and Phase 4
the action of the State was not bonafide and/ or otherwise unfair, in our
opinion, the Tribunal and consequently the High Court could exercise their
jurisdiction to issue a writ of or in the nature of Mandamus, as has been
sought to be done, but neither any such plea was raised nor the same was
otherwise found to be existing.
is well-known that even selected candidates do not have legal right in this
behalf. [See Shankarasan Dash v. Union
of India - 1991 (2) SCR 567, Asha Kaul
(Mrs.) and Another v. State of Jammu and Kashmir and Others (1993) 2 SCC 577]
K. Jayamohan v. State of Kerala and Another [(1997) 5 SCC 170],
this court held:
It is settled legal position that merely because a candidate is selected and
kept in the waiting list, he does not acquire any absolute right for
appointment. It is open to the Government to make the appointment or not. Even
if there is any vacancy, it is not incumbent upon the Government to fill up the
same. But the appointing authority must give reasonable explanation for non-
appointment. Equally, the Public Service Commission/recruitment agency shall
prepare waiting list only to the extent of anticipated vacancies. In view of
the above settled legal position, no error is found in the judgment of the High
Court warranting interference. [See also Munna Roy v. Union of India and
Others, (2000) 9 SCC 283] 17. In All India SC & ST Employees
Association and Another v. A. Arthur Jeen and Others [(2001) 6 SCC 380], it was
Merely because the names of the candidates were included in the panel
indicating their provisional selection, they did not acquire any indefeasible
right for appointment even against the existing vacancies and the State is
under no legal duty to fill up all or any of the vacancies as laid down by the
Constitution Bench of this Court, after referring to earlier cases in Shankarsan
Dash reads thus :- "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 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
recruitment rules so indicate, the State is under no legal duty to fill up all
or any of the vacancies.
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 recruitment test, and no discrimination can be permitted. This correct
position has been consistently followed by this Court, and we do not find any
discordant note in the decisions in State of Haryana vs. Subhash Chander Marwaha,
Neelima Shangla vs. State of Haryana or Jatendra Kumar vs. State of
The principles laid down in the aforementioned cases have been upheld by this
Court in Food Corporation of India and Others v. Bhanu Lodh and Others [(2005)
3 SCC 618] stating:
Merely because vacancies are notified, the State is not obliged to fill up all
the vacancies unless there is some provision to the contrary in the applicable
rules. However, there is no doubt that the decision not to fill up the
vacancies, has to be taken bona fide and must pass the test of reasonableness
so as not to fail on the touchstone of Article 14 of the Constitution. Again,
if the vacancies are proposed to be filled, then the State is obliged to fill
them in accordance with merit from the list of the selected candidates. Whether
to fill up or not to fill up a post, is a policy decision, and unless it is
infected with the vice of arbitrariness, there is no scope for interference in
Pitta Naveen Kumar and Others v. Raja Narasaiah Zangiti and Others (2006) 10
SCC 261], this Court observed :
legal position obtaining in this behalf is not in dispute. A candidate does not
have any legal right to be appointed. He in terms of Article 16 of the Constitution
of India has only a right to be considered therefor. Consideration of the case
of an individual candidate although ordinarily is required to be made in terms
of the extant rules but strict adherence thereto would be necessary in a case
where the rules operate only to the disadvantage of the candidates concerned
and not otherwise In a situation of this nature, no appointment could be
made by the State in absence of the Select List. The State could not substitute
itself for the Selection Committee.
Furthermore, ordinarily, the writ court should not, in absence of any legal
right, act on the basis of sympathy alone.
Ramakrishna Kamat and Others v. State of Karnataka and Others [(2003) 3 SCC 374] albeit in the light of right of
regularization in service, this Court opined:
is clear from the order of the learned single Judge and looking to the very
directions given a very sympathetic view was taken. We do not find it either
just or proper to show any further sympathy in the given facts and
circumstances of the case. While being sympathetic to the persons who come
before the court the courts cannot at the same time be unsympathetic to the
large number of eligible persons waiting for a long time in a long (SIC)
seeking employment [See also Maruti Udyod Ltd. v. Ram Lal and Others,
(2005) 2 SCC 638, State of Bihar & Ors. v. Amrendra Kumar Mishra, 2006 (9)
SCALE 549, Regional Manager, SBI v. Mahatma Mishra, 2006 (11) SCALE 258 and
State of Karnataka v. Ameerbi & Ors. 2006 (13) SCALE 319]
the reasons aforementioned, the impugned judgment cannot be sustained which is
set aside accordingly. However, keeping in view the peculiar facts and
circumstances of the case, we direct that the respondents shall be entitled to
relaxation of age in the event they intend to take part in the next selection
process. The State is also directed to pay a sum of Rs. 10,000/- each to the
respondents concerned. The appeals are allowed. No costs.