S.S. Balu and ANR. Vs.
State of Kerala and Ors. [2009] INSC 62 (13 January 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 104 OF 2009 (Arising out
of SLP (C) No. 8586 of 2006) S.S. BALU & ANR. ... APPELLANTS Versus
S.B. Sinha, J.
1.
Leave
granted.
2.
Appellants
herein are before us aggrieved by and dissatisfied with a judgment and order
dated 5.10.2005 passed by a Division Bench of the High Court of Kerala at
Ernakulam in Writ Appeal No. 53 of 2005 (A) and others whereby and whereunder
the Writ Appeals preferred by the State of Kerala from a judgment and order
dated 25.8.2004 passed by a learned single judge of the said Court in O.P. No.
28082 of 2002 and others were allowed.
3.
Appellants
herein pursuant to or in furtherance of a requisition made by the State of
Kerala before the Kerala Public Service Commission (for short, "the
Commission") applied for the post of Lower Primary/Upper Primary School
Assistants. On 5.6.1997, the Commission prepared a rank list, which was in
force from 5.6.1997 to 5.6.2000. Appellants' name figured therein. The
vacancies, however, were not filled up. However, as no vacancy was filled up by
the Deputy Director of Education, writ petitions were filed before the Kerala
High Court praying for issuance of a writ of mandamus or any other writ or
order directing the Deputy Director of Education to report all the vacancies to
the Commission so as to enable it to advise the respective candidates pursuant
whereto and in furtherance whereof the appointing authority may issue offers of
appointment. It is stated that the appellants were parties therein.
4.
On
or about 3.6.2000, pursuant to the direction of the High Court, dated
22.5.2000, the Deputy Director of Education reported 125 vacancies and on or
about 5.6.2000, he reported further 50 vacancies just before the expiry of the
rank list with a note that they were anticipated vacancies.
However, as the
vacancies were shown as anticipated vacancies, the Commission could not issue
letter of advise against those 175 vacancies reported by the Deputy Director of
Education.
5.
On
or about 24.10.2001, the said writ petitions were heard and disposed of by the
Division Bench of the High Court, holding:
"We are of the
view since there is controversy between the parties with regard to the number
of vacancies it would be appropriate that a direction be given to first
respondent to take a decision on the dispute raised in this proceeding."
6.
In
compliance of the said judgment, the State of Kerala issued a Government Order
dated 15.1.2002 reporting that there was no vacancy.
7.
Another
writ petition marked as O.P. No. 28082 of 2002 was filed by a few candidates
praying for quashing of the said Government Order dated 15.1.2002 upon grant of
a declaration that 175 vacancies reported by the Deputy Director of Education
should be filled from amongst the candidates whose names find place in the
select list and for consequential directions.
8.
By
reason of a judgment and order dated 25.8.2004, the High Court held:
"26. At this
stage, I consider it necessary to advert to the contention of the standing
counsel of the Commission that after the expiry of Ext. P1 rank list a new list
has come into operation and therefore candidates included in Ext. P1 rank list
cannot be advised for appointment. I cannot agree 4 to the above argument of
the learned counsel. 175 vacancies were reported to the Commission before the
expiry of Ext. P1 rank list. Since those vacancies were wrongly described as
anticipated vacancies the Commission did not advise candidates against those
vacancies. Thereupon, aggrieved candidates approached this Court. A Division
Bench of this Court directed the 1st respondent to report the vacancies
correctly. The 1st respondent, however, issued Ext. P3 order without taking
into account all relevant aspect. As I have found that 175 vacancies already
reported were not anticipated vacancies but vacancies which had, in fact,
occurred prior to the expiry of Ext. P1, candidates included in Ext. P1 are
entitled to be advised for appointment against those vacancies. The legitimate
claim of the petitioners cannot be denied for the reason that during the
pendency of the writ petitions a new list has come into operation. I am clearly
of the view that what is legitimately due to the candidates in Ext. P1 should
be given to them."
Appellants were not
parties to the said writ petitions.
9.
The
State of Kerala preferred an appeal thereagainst before the Division Bench of
the said Court, which was marked as Writ Appeal No. 53 of 2005. Before the High
Court, however, appellants got themselves impleaded as respondents 5 and 6
respectively. The said Writ Appeal was allowed by reason of the impugned
judgment directing the Commission to advise in respect of 18 of the original
petitioners who had filed the writ petition bearing O.P. No. 28082 of 2002 to
quash the Government Order 5 dated 15.1.2002. No direction was issued in
respect of those who got themselves impleaded as parties therein including the
appellants herein.
10.
Appellants
are, thus, before us, contending that as their names appeared in the `rank
list' and they being seniors to some of the original writ petitioners they
should also be directed to be appointed.
11.
Ms.
Malini Poduval, learned counsel appearing on behalf of the appellants would
submit:
i. the High Court
committed a serious error of law in passing the impugned judgment insofar as it
failed to take into consideration that as the appellants are similarly situated
with that of the original writ petitioners to whom the State Government agreed
to give appointment.
ii. There was
absolutely no reason as to why they should have been discriminated against
particularly when they had also got themselves impleaded as respondents in the
writ appeal.
12.
Mr.
Vipin Nair, learned counsel appearing on behalf of the respondents, on the
other hand, would urge that the respondents having filed no writ petition and
keeping in view of the fact that not only the rank list in 6 question but also
the 2nd rank list for the period between 16.9.2002 and 15.9.2005 are exhausted,
the impugned judgment is wholly unassailable.
13.
The
legality and/or the validity of Government Order dated 15.1.2002, as noticed
hereinbefore, was questioned, inter alia, on the premise that the actual
vacancy position had been suppressed by the State.
A finding of fact to
that effect appears to have been arrived at by the learned single judge of the
High Court in his judgment and order dated 25.8.2004, holding:
"24. Respondents
1 and 2 have got a contention that 65% of the N.J.D. vacancies alone shall be
reckoned as reportable vacancies. I do not agree.
As rightly submitted
by the petitioners, vacancies had been reported based on the 65% set apart for
direct recruitment and once those vacancies fall vacant consequent on the non
joining duty of the candidates advised for appointment, a further deduction of
35% from the N.J.D. vacancies is not justified.
25. It is not
disputed that total vacancies including N.J.D. vacancies reported to the
Commission after 5.12.1997 was 580 (barring 175 vacancies described as
anticipated vacancies).
Therefore the number
of unreported vacancies will come to 208. When state of affairs stood as above,
the 2nd respondent reported 125 vacancies on 3.6.2000 and 50 vacancies on
5.6.2000 as directed by this Court. The reporting was done with the rider that
the above 175 vacancies were only anticipated vacancies. As I have found that
there were, at any rate, 208 reportable vacancies, I have 7 no hesitation to
hold that the 2nd respondent was not justified in informing the Commission that
175 vacancies were anticipated vacancies. Ext. P3 is therefore
unsustainable."
14.
The
matter might have been different, had the learned single judge as also the
Division Bench come to a conclusion that in fact there existed 125 vacancies
wherefor requisition was sent to the Commissioner. The existence of actual
number of vacancies being in dispute, it is difficult for us to opine as has
been contended by the learned counsel that all such vacancies existed. Before
the Division Bench of the High Court, the State conceded that 18 original writ
petitioners may be appointed stating that they were the actual beneficiaries of
the judgment. Such a stand on the part of the State was accepted. The Division
Bench of the High Court did not go into the other contentions raised by the
parties thereto. No factual foundation, therefore, has been laid before us for
arriving at the conclusion that all the 125 vacancies existed.
15.
There
is another aspect of the matter which cannot also be lost sight of. A person
does not acquire a legal right to be appointed only because his name appears in
the select list. [See Pitta Naveen Kumar & ors. vs. Raja Narasaiah Zangiti
& ors. (2006) 10 SCC 261].
16.
The
state as an employer has a right to fill up all the posts or not to fill them
up. Unless a discrimination is made in regard to the filling up of the
vacancies or an arbitrariness is committed, the concerned candidate will have
no legal right for obtaining a writ of or in the nature of mandamus.
[See Batiarani
Gramiya Bank vs. Pallab Kumar & ors. (2004) 9 SCC 100] In Shankarsan Dash
vs. Union of India [(1991) 3 SCC 47], a Constitution Bench of this Court held:
"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 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.
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
recruitment test, and no discrimination can be permitted."
In State of Haryana
vs. Subash Chander Marwaha [(1974) 3 SCC 220], this Court held:
9 "The mere
fact that a candidate's name appears in the list will not entitle him to a
mandamus that he be appointed. Indeed, if the State Government while making the
selection for appointment had departed from the ranking given in the list,
there would have been a legitimate grievance on the ground that the State
Government had departed from the rules in this respect...
11. It must be
remembered that the petition is for a mandamus. This Court has pointed out in
Dr Rai Shivendra Bahadur v. Governing Body of the Nalanda College that in order
that mandamus may issue to compel an authority to do something, it must be
shown that the statute imposes a legal duty on that authority and the aggrieved
party has a legal right under the statute to enforce its performance. Since
there is no legal duty on the State Government to appoint all the 15 persons
who are in the list and the petitioners have no legal right under the rules to
enforce its performance the petition is clearly misconceived."
In Pitta Naveen Kumar
vs. Raja Narasaiah Zangiti [(2006) 10 SCC 261], this Court held:
"....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 State of Rajasthan
& ors. vs. Jagdish Chopra [(2007) 8 SCC 161], this Court held:
10 "9.
Recruitment for teachers in the State of Rajasthan is admittedly governed by
the statutory rules. All recruitments, therefore, are required to be made in
terms thereof. Although Rule 9(3) of the Rules does not specifically provide
for the period for which the merit list shall remain valid but the intent of
the legislature is absolutely clear as vacancies have to be determined only
once in a year. Vacancies which arose in the subsequent years could be filled
up from the select list prepared in the previous year and not in other manner.
Even otherwise, in absence of any rule, ordinary period of validity of select
list should be one year. In State of Bihar v. Amrendra Kumar Mishra (2006) 12 SCC
561, this Court opined:
(SCC p.564, para 9)
"9. In the aforementioned situation, in our opinion, he did not have any
legal right to be appointed. Life of a panel, it is well known, remains valid
for a year. Once it lapses, unless an appropriate order is issued by the State,
no appointment can be made out of the said panel."
It was further held:
(SCC p.565, para 13) "13. The decisions noticed hereinbefore are
authorities for the proposition that even the wait list must be acted upon
having regard to the terms of the advertisement and in any event cannot remain
operative beyond the prescribed period."
xxx xxx xxx
11. It is
well-settled principle of law that even selected candidates do not have legal
right in this behalf. (See Shankarsan Dash v. Union of India (1991) 3 SCC 47,
and Asha Kaul v. State of J&K (1993) 2 SCC 573)"
17.
Furthermore,
the rank list was valid for a period of three years. Its validity expired on
5.6.2000. Another Select List was published for the 11 period from 16.9.2002
to 15.9.2005. Vacancies in terms of the said Select List have also been filled
up.
18.
It
is also well settled principle of law that "delay defeats equity".
Government Order was
issued on 15.1.2002. Appellants did not file any writ application questioning
the legality and validity thereof. Only after the writ petitions filed by
others were allowed and State of Kerala preferred an appeal thereagainst, they
impleaded themselves as party respondents. It is now a trite law that where the
writ petitioner approaches the High Court after a long delay, reliefs prayed
for may be denied to them on the ground of delay and laches irrespective of the
fact that they are similarly situated to the other candidates who obtain the
benefit of the judgment. It is, thus, not possible for us to issue any
direction to the State of Kerala or the Commission to appoint the appellants at
this stage.
In New Delhi
Minicipal Council v. Pan Singh and Ors. (2007) 9 SCC 278, this Court held:
"16. There is
another aspect of the matter which cannot be lost sight of. The respondents
herein filed a writ petition after 17 years. They did not agitate their
grievances for a long time. They, as noticed herein, did not claim parity with
the 17 workmen at the earliest possible opportunity. They did not implead
themselves as parties even in the 12 reference made by the State before the
Industrial Tribunal. It is not their case that after 1982, those employees who
were employed or who were recruited after the cut-off date have been granted
the said scale of pay. After such a long time, therefore, the writ petitions
could not have been entertained even if they are similarly situated. It is
trite that the discretionary jurisdiction may not be exercised in favour of
those who approach the court after a long time. Delay and laches are relevant
factors for exercise of equitable jurisdiction."
{See also Virender
Chaudhary vs. Bharat Petroleum Corporation & Ors.
[2008 (15) SCALE 67]}
19.
For
the reasons aforementioned, there is no merit in this appeal. It is dismissed
accordingly. No costs.
......................................J.
[S.B. Sinha]
......................................J.
[Dr. Mukundakam Sharma]
New
Delhi;
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