Supreme Court of India
S.S. BALU & ANR.versusSTATE OF KERALA & ORS.
- Citation
- 2009 INSC 23
- Decided
- 13 January 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
A candidate’s presence on a select list does not create a legal right to appointment; absent discrimination or arbitrariness, the State may lawfully decide not to fill vacancies, and delay defeats equity.
Issues considered
- Does mere inclusion in a valid select list confer a legal right to appointment?
- Can the State be compelled by mandamus to fill vacancies reported as anticipated?
- Does the appellants’ delay in seeking relief amount to laches, barring equitable relief?
- Is the State’s discretion to fill or not fill vacancies limited by any statutory duty?
Subjects
service lawappointmentselect listright to appointmentmandamusdelaylachespublic service commissionvacancy
Judgment
[2009] 1 S.C.R. 196
A S.S. BALU & ANR.
v.
STATE OF KERALA & ORS.
(Civil Appeal No.104 of 2009)
JANUARY 13, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
Service law - Appointment - Post of assistant - Names
of appellants appearing in rank list but not appointed -
c Vacancies reported just before expiry of rank list as anticipated
vacancies and as such non-issuance of letter of advise -
Subsequently, Government Order that there was no vacancy
- Challenged by petitioners - Appointment of petitioners -
Claim of appointment by appellant - Held: Person does not
D acquire a legal right to be appointed only because his name
appears in select list - It is only when there is discrimination
or arbitrariness in filling up the vacancies - State as employer
has right to fill up all posts or not to fill them up - First rank
list as a/so second rank list exhausted and vacancies in terms
E thereof filled up - Appellant did not challenge Government
Order- They imp/eaded themselves as parties only after writ
petitions filed by others were allowed and State filed appeal
thereagainst - Delay defeats equity - Thus, State or
Commission cannot be directed to appoint appellants at this
stage - De/ay!Laches.
F
Appellants applied for the post of Assistants. State
Public Service Commission prepared a rank list, which
was in force for three years. Name of the appellants
appeared therein. However, the vacancies were not filled
G up. Writ petitions were filed. Pursuant to the directions by
the High Court, Deputy Director of Education reported
125 vacancies and further 50 vacancies just before the
y
expiry of the rank list with a note that they were
anticipated vacancies. As a result, the Commission could
H 196
S.S. BALU & ANR. v. STATE OF KERALA & ORS. 197
not issue letter of advise against the said vacancies. Writ A
petitions were disposed of with a direction to the
respondent-State to take decision. Respondent issued
Government Order reporting that there was no vacancy.
Few candidates filed writ petition for quashing of the
Government Order and for a declaration that 175 B
vacancies should be filled from amongst the candidates
whose names were there in the select list. High Court
held that the 175 vacancies already reported were not
anticipated vacancies but vacancies which had, in fact,
occurred prior to the expiry of rank list and the candidates c
included therein are entitled to be advised for
appointment against those vacancies; and that claim of
the petitioners could not be denied for the reason that
during the pendency of the writ petitions a new list came
into operation. Respondent filed appeal. Appellants got D
themselves impleaded as parties. Writ Appeal was
-<\
allowed directing the Commission to advise in respect of
18 petitioners who had filed the writ petition. However, no
direction was issued in respect of appellants. Hence the
present appeal.
E
Dismissing the appeal, the Court
HELD: 1.1 The matter might have been different, had
the Single Judge as also the Division Bench of High
·"' Court come to a conclusion that in fact there existed 125 F
vacancies wherefor requisition was sent to the
Commissioner. The existence of actual number of
vacancies being in dispute, it is difficult to opine that all
such vacancies existed. Before the Division Bench of the
High Court, the State conceded that 18 original writ G
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. Therefore, no factual foundation
H
198 SUPREME COURT REPORTS (2009] 1 S.C.R.
A has been laid for arriving at the conclusion that all the 125
vacancies existed. [Para 14] [203-H; 204-A-C]
1.2. A person does not acquire a legal right to be
appointed only because his name appears in the select
list. The state as an employer has a right to fill up all the
8
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
C of mandamus. [Paras 15 and 16] [204-D, E, F]
1.3. 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 period from 16.9.2002 to 15.9.2005.
Vacancies in terms of the said Select List have also been
D filled up. [Para 17] [207-C]
Pitta Naveen Kumar & Ors. vs Raja Narasaiah Zangiti
& Ors. (2006) 10 SCC 261 and Batiarani Gramiya Bank vs
Pal/ab Kumar & Ors. (2004) 9 SCC 100, relied on.
E Shankarsan Dash vs Union of India (1991) 3 SCC 47;
State of Haryana vs Subash Chander Ma1Waha (1974) 3 SCC
220 and State of Rajasthan & Ors. vs Jagdish Chopra (2007)
8 sec 161, referred to.
F 2."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
G impleaded themselves as party respondents. 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
H obtain the benefit of the judgment. Thus, it is not possible
S.S. BALU & ANR. v. STATE OF KERALA & ORS. 199
to issue any directions to the State of Kerala or the A
Commission to appoint the appellants at this stage. [Para
18] [207 -D-F]
New Delhi Municipal Council vs Pan Singh & Ors. (2007)
9 SCC 278 and Virender Chaudhary vs Bharat Petroleum
B
Corporation & Ors. 2008(15) SCALE 67, relied on.
Case Law Reference:
(2006) 10 sec 261 Relied on. Para 15, 16
(2004) 9 sec 100 Relied on. Para 16 c
(1991) a sec 47 Referred to. Para 16,
(1974) a sec 220 Referred to. Para 16
(2001) 8 sec 161 Referred to. Para 16 D
(2001) 9 sec 218 Relied on. Para 18
(2008) 15 SCALE 67 Relied on. Para 18
CIVIL APPELLATE JURISDICTION: Civil Appeal No.104
of 2009. E
From the Judgment and Order dated 5.10.2005 of the High
Court of Kerala at Ernakulam in W.A. No. 53 of 2005 (A).
,,,.
Malini Poduval and Bahita Sant for the Appellants. F
Vipin Nair, P.B. Suresh, Vivek Sharma (for M/s. Temple
Law Firm) and G. Prakash for the Respondents.
The Judgment of the Court was delivered by
G
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 Divisiori Bench of the High Court of Kerala at Ernakulam
in Writ Appeal No. 53 of 2005 (A) and others whereby and H
200 SUPREME COURT REPORTS [2009] 1 S.C.R.
A 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
8
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
C 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
D 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.
E 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
F 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,
G holding:
"We are of the view since there is controversy between the
parties with regard to the !lumber of vacancies it would be
appropriate that a direction be given to first respondent to
H take a decision on the dispute raised in this proceeding."
S.S. BALU & ANR. v. STATE OF KERALA & ORS. 201
[S.B. SINHA, J.)
6. In compliance of the said judgment, the State of Kerala A
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 B
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.
c
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 D
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 to
the above argument of the learned counsel. 175 vacancies
were reported to the Commission before the expiry of Ext. E
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 F
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 G
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 H
202 SUPREME COURT REPORTS [2009] 1 S.C.R.
A 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
B 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
C petition bearing O.P. No. 28082 of 2002 to quash the
Government Order dated 15.1.2002. No direction was issued
in respect of those who got themselves impleaded as parties
therein including the appellants herein.
0 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
E 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
F 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
G 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
H respondents having filed no writ petition and keeping in view
S.S. BALU & ANR. v. STATE OF KERALA & ORS. 203
[S.8. SINHA, J.]
-1- of the fact that not only the rank list in question but also the 2nd A
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,
B
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:
c
"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 D
-<
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.
E
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
F
.
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 anJicipated vacancies. As I have
found that there were, at any rate, 208 reportable
vacancies, I have no hesitation to hold that the 2nd G
respondent was not justified in informing the Commission
"' that 175 vacancies were anticipated vacancies. Ext. P3
is therefore l!_nsustainable."
,_
14. The matter might have been different, had the learned H
204 SUPREME COURT REPORTS [2009] 1 S.C.R.
A 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
B 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
c 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
D be appointed only because his name appears in the select list.
[See Pitta Naveen Kumar & ors. vs. Raja Narasaiah Zangiti
& ors. (2006) 10 sec 261].
16. The state as an employer has a right to fill up all the
E 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. Pa/lab Kumar & Ors. (2004) 9 SCC 100]
F 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
G 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
H any right to the post. Unless the relevant recruitment rules
S.S. BALU & ANR. v. STATE OF KERALA & ORS. 205
[S.B. SINHA, J.]
i. so indicate, the State is under no legal duty to fill up all or A
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 B
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:
c
"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 D
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 E
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 F
the State Government to appoint all the 15 persons who
are in the list ar.d the petitioners have no legal right under
the rules to enforce its performance the petition is clearly
misconceived."
G
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 H
206 SUPREME COURT REPORTS [2009] 1 S.C.R.
A 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
B disadvantage of the candidates concerned and not
otherwise ... "
In State of Rajasthan & ors. vs. Jagdish Chopra [(2007)
8 SCC 161], this Court held:
C "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
D 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
E 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
F 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."
G 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
H
S.S. BALU & ANR. v. STATE OF KERALA & ORS. 207
[S.B. SINHA, J.)
operative beyond the prescribed period." A
)()()( )()()()()()(
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 B
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 period from 16.9.2002 to 15.9.2005. c
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
D
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 E
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. F
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 G
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
H
208 SUPREME COURT REPORTS [2009] 1 S.C.R.
A 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
B 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 lon'g time. Delay
and laches are relevant factors for exercise of equitable
jurisdiction."
C {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.
D
N.J. Appeal dismis~ed.
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