Holding

A candidate does not acquire an indefeasible right to appointment merely by being on a merit list, and the State may, in good faith, decide not to fill all vacancies, so the appeal was dismissed.

Summary

The appellant, selected in the combined Civil Services Examination, was initially appointed to the Delhi Andaman and Nicobar Police Service (DANIP). When vacancies later arose in the Indian Police Service (IPS), the three reserved‑category vacancies were filled from DANIP candidates, but the general‑category vacancies were left unfilled. The appellant claimed that, having been the top candidate on the merit list, he was entitled to be appointed to one of the general vacancies and that the State’s refusal was arbitrary and discriminatory. The Union of India contended that the final selection process had been closed and that the State was not obligated to fill every vacancy, especially given differing circumstances for reserved and general categories. The Supreme Court held that a merit‑list candidate does not acquire an indefeasible right of appointment and that the State may, in good faith, decide not to fill all vacancies, provided the decision is not arbitrary; consequently, the appeal was dismissed.

Issues considered

Whether a candidate whose name appears on a merit list of a competitive examination acquires an indefeasible right of appointment when a vacancy exists.
Whether the State's decision to fill reserved‑category vacancies but not general‑category vacancies in the IPS is arbitrary, discriminatory, and violative of equality principles.
Whether the recruitment rules and regulations impose a legal duty on the State to fill all notified vacancies.
Whether the closure of the final selection process lawfully permits the State to stop further appointments.

Legislation cited

Constitution of Indias. Article 226
Indian Police Service (Appointment by Competitive Examination) Regulations, 1955s. Regulation 13, s. Regulation 2(1)(a), s. Regulation 8
Indian Police Service (Cadre) Rules, 1954s. Rule 4
Indian Police Service (Recruitment) Rules, 1954s. Rule 3, s. Rule 4, s. Rule 6, s. Rule 7

Subjects

Civil services recruitmentMerit listRight to appointmentReservationEqualityArbitrarinessIndian Police ServicePublic service rulesConstitutional lawArticle 226

Judgment

. SHANKARSAN DASH
A
v.
UNION OF INDIA

APRIL 30, 1991

[B.C. RAY, K.J. SHETIY, LAUT MOHAN SHARMA, B
M.N. VENKATACHALIAH AND J.S. <VERMA, JJ.]

Civil Services: Recruitment by Competitive Examination-Candi-
date included in merit list-Whether acquires an indefeasible right of
appointment-Filling up of vacancies-Adoption of different policy for
general and reserved categories-Whether arbitrary and discriminatory
-Indian Police Service (Cadre) Rules, 1954: Rule 4: Indian Police
c
Service (Recruitment) Rules; Ru/es 3, 4, 6 and 7; and Indian Police
Service (Appointment by Competitive Examination) Regulations:
Regulations 2( I)(a), 8 and I3-App/icability of.

On the basis of the results of the combined Civil Services Exami- D
nation held by the Union Public Service Commission for appointment to
several Services and the position in the combined merit list for the Indian
Police Service and Police Services, Group 'B' the appellant was
appointed to the Delhi Andaman and- Nicobar Police Service, also
known as DANIP. Subsequently when certain vacancies arose in the
Indian Police Service, due to selected candidates not joining the Service, E
and only the reserved category vacancies were filled up by the candi-
dates, who bad been earlier appointed in DANIP Service, the appellant,
who came to occupy top position, represented to the authorities for
filling the general vacancies also, hut his request was turned down.
Hence the appellant filed writ application before the High Court, which
was dismissed in limine. F

In the appeal before this Court, on behalf of the appellant it was
contended that since ultimately several vacancies in the general cate-
gory of the IPS remained unfilled, he was entitled to he appointed in one
of them, that since 54 vacancies were notified for general category and
be was found qualified for the appointment, the respondent could not G
refuse to fill up the vacancies, and there was no justification to refuse to
follow the procedure adopted in similar situation with respect to the
reserved category, in regard to the general category vacancies also and
that in view of the relevant statutory rules, the authorities were under a
duty to continue with the process of filling up the vacancies until none
remained vacant,· and by keeping the posts unfilled, they had acted H
arbitrarily.
567
568 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

A On behalf of the respondent-Union of India it was contended that
the tentative service allocation for IPS was completed before the com-
mencement of the foundational course for the IPS, and the process of
final service allocation was closed after filling up certain vacancies, ..i- ·
which had arisen, since the process for recruitment for the next year
had already started, and hence the additional vacancies arising later
B remained unfilled, that the process followed in connection with the
reserved category, was not followed in regard to the general category
vacancies on account of vital differences obtaining in the relevant condi-
tions in the two categories, and hence there was no discrimination or
arbitrariness, in keeping the general category vacancies unfilled. ~ -

Dismissing the appeal, this Court
c
HELD: 1.1 Even if vacancies are notified for appointment and
adequate number of candidates are found fit, the successful candidates
do not acquire an indefeasible right to be appointed. Ordinarily, the
notification merely amounts to an invitation to qualified candidates to
D apply for recruitment and on their selection they do not acquire a11y
right to the post. Unless the relevant recruitment rules so indkate, the
State is under no legal duty to fill up all or any of the vacancies. How-
ever, it does not mean that the State has the licence of acting in an
arbifrary 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
E them are filled up, the State is bound to respect the.comparative merit
of the candidates, as reflected at the recruitment test, and no discrimi-
nation can be permitted. [572A·C]

State of Haryana v. Subhash Chander Marw_aha and Others_,_
[1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and
-
F Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of
Punjab and Others, [1985] l SCR 899, referred to.

1.2 The appellant had not acquired a right to be appointed
against the vacancy arising later on the basis of any of the rules,
namely, Rule 4 of the Indian Police Service (Cadre) Rules, 1954, Rules
G 3, 4, 6 and 7 of the Indian Police Service (Recruitment) Rules, 1954 and
Regulations 2(l)(a) and (c), 8 and 13 of the Indian Police Service
(Appointment by Competitive Examination) Regulations, 1955. These
provisions do not indicate that all the notified vacancies are to be filled
up. [573G, 5748]

H 1.3. From the materials placed before the Court it is fully "estab-
SHANKARSAN DASH v. U.0.1. [SHARMA, J.] 569

Iished that there has not been any arbitrariness whatsoever on the part A
of the respondent in fillillg up the vacancies in question or other vacan-
cies. The process of final selection had to be closed at some stage as was
actually done. A decision in this regard was accordingly taken and the
process for further allotment to any vacancy arising later was closed. It
is not material if in pursuance of a decision already taken before closing B
the process of final selection, the formal appointments were concluded
later. What is relevant is to see as to when the process of fmal selection
was closed. Mere completing the formalities does not give any right to
appointment. [574E-G]

1.4 The decision to adopt a different policy with respect to filling
np of the reserved vacancies is justified on account of the special c
circumstances. The decision to depart from the confmned policy was
taken after consideration by the authorities of the position in regard to
unavailability of qualified candidates from year to year adversely
affecting the desired strength of the reserved candidates in the services
and cannot be condemned on the grounds of arbitrariness and illegal
D
discrimination. [57 SB]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8613
of 1983.

From the Judgment and Order dated 21. 1.1981 of the Delhi High
E
Court in Civil Writ No. 41of1981.

P.K. Goswamy and Kailash Vasudev for the Appellant.

V.C. Mahajan, Ashok Bhan and C.V. Subba Rao for the
Respondent.
F
The Judgment of the Court was delivered by

Sharma, J. This appeal was earlier heared by a Division Bench
and was referred to a Constitution Bench for examining the question
whether a candidate whose name appears in the merit list on the basis
G
of a competitive examination, acquires indefeasible right of appoint-
ment as a Government servant if a vacancy exists. Reference was made
to the decision in State of Haryana v. Subhash Chander Marwaha and
Others, [1974] 1 SCR 165; Miss Neelima Shangla, Ph. D. v. State of
Haryana and Others, [1986] 4 SCC 268 andlitendra Kumar and Others
v. State of Punjab and Others, [1985] 1SCR899. H
570 SUPREME COURT REPORTS [ 1991) 2 S.C.R.

A 2. The appellant was selected in the combined Civil Services
Examination held by the Union Public Service Commission for
appointment to several services including the Indian Police Service (in
short 'the IPS') and the Police Services Group 'B'. The examination -<--
had been held in October, 1977 and the result was announced in May,
1978. A combined merit list for the IPS and the Police Services Group
B 'B' was announced which included the name of the appellant. Out of
the total number of 70 vacancies in the IPS announced to be filled up,
54 were of general category and the remaining 16 reserved for
Scheduled Castes/Scheduled Tribes candidates. The position of the
appellant in the merit list was not high enough to be included in the
IPS and he was offered appointment to the Delhi Andaman and
C Nicobar Police Service (hereinafter referred to as the 'DANIP') ii\
Police Service Group 'B' which he accepted. On account of several \
candidates, allotted to Police Services Group 'B' not joining, the posi-
tion of the appellant improved and ultimately he was on the top of the
list.

D 3. In June, 1979, 14 vacancies arose in the IPS due to selected
candidates not joining the service. Out of the same, 11 were in the
general category and 3 in the reserved category. Three vacancies in the
reserved category were filled up by the candidates who had been
earlier appointed in DANIP Service, but no appointments were made
to general category vacancies. The appellant, by a representation,
E prayed that these vacancies also should be filled up. The request was
turned down, and the appellant moved the Delhi High Court by a writ
application under Article 226 of the Constitution, which was dismissed
in limine by the impugned order.

4. The case of the appellant is that since ultimately several
F vacancies in the general category of the IPS remained unfilled, he was
entitled to be appointed in one of them, and the authorities were not
right in rejecting his representation. It has been contended that after
calculating the number of vacancies in the IPS, it was announced that
appointments would be made in 54 vacancies of general category, and
steps for recruitment were accordingly taken. The appellant along with
G others appeared at the elaborate test held for the purpose and he was '>--
found qualified for the appointment. In that situation the respondent
could not refuse to fill up the vacancies and proceed to appoint the
appellant in the Police Services Group 'B '. It has been argued that the
correct procedure in similar situation was followed with respect to the
reserved category and the three. vacancies arising in identical situation
H were filled up from the candidates selected for DANIP Service, and
SHANKARSAN DASH v. U.0.1. [SHARMA, J.] 571

there was no justification to refuse similar benefit to the appellant in A
the general category.

5. According to the case of the Union of India, the process for
the recruitment in question started in 1977, and the tentative service
allocation for JPS was completed before the commencement of tne B
foundational course in July, 1978. All the candidates selected for IPS,
excepting those who were eligible to appear at the examination for the
Indian Administrative Service scheduled to be held in October·
November, 1978, and such other' candidates who had not been finally
cleared on account of pending medical examination or character verifi-
cation had to attend the foundational course. Candidates allocated to
Police Services Group 'B' were not required to undergo this course. By c
June, 1978, 7 more vacancies arose on account of candidates not join-
ing IPS due to various reasons, and 7 persons in order of merit from
the joint list of the JPS and the Police Services Group 'B' were allowed
to fill up thes.e vacancies. The last one in this list of 7 candidates was
Shekhar Singh at serial No. 94. The appellant could not get a chance as
D
his position was lOOth. This process of final service allocation was
... closed on 24.10.1978 or at the latest by 4.11.1978, in view of the
process for recruitment for the year 1978, which had already started.
The additional vacancies arising later, therefore, remained unfilled.
The entire procedure which is followed for recruitment to the Services
has been given in several affidavits of the respondent, and detailed
E
information in this regard was supplemented by a further affidavit
during the hearing of the appeal filed in the light of observations of the
Bench.

6. Dealing with the appointments to reserved category, it has
been stated in the counter affidavit that the process which was fol-
F
lowed in connection with the general category and which· was being
earlier followed for the reserved category also, was relaxed in pur-
suance of a policy decision taken after examining all relevant circums-
tances and materials in regard to this category including the strength of
the reserve category in the IPS, the result of the examinations for the
year 1975, 1976 and 1977. The procedure which was being followed in G
the past was not relaxed in regard to the general category on account
of vital differences obtaining in the relevant conditions in the two
categories and the appellant's plea of alleged discrimination does not
have any merit. Similarly the case of one Km. Vandana Srivastava
cited by the appellant has also been distinguished and Mr. Goswami,
therefore, did not pursue this plea any further in his final reply. H
572 SUPREME COURT REPORTS [1991] 2 S.C.R.

A 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 notifi- .,__
cation merely amounts to an invitation to qualified candidates to apply
for recruitment and on their selection they do not acquire any right to
B 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
C 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 v. Subhash Chander Marwaha and Others, [1974] 1
SCR 165; Miss Neelima Shangla v. State of Haryana and Others. [1986]
4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Other."
D [1985] 1SCR899. .

8. In State of Haryana v. Subhash Chander Marwaha and .Jo
Others, (supra) 15 vacancies of Subordinate Judges were advertised,
and out of the selection list only 7, who had secured more than 55%
marks, were appointed, although under the relevant rules the eligibility
E condition required only 45% marks. Since the High Court had recom-
mended earl_ier, to the Pun jab Government that only the candidates
securing 55% marks or more should be appointed as Subordinate
Judges, the other candidates included in the select list were not
appointed. They filed a writ petition before the High Court claiming a
right of being appointed on the ground that vacancies existed and they
F were qualified and were found suitable. The writ applic~tion was
allowed. While reversing the decision of the High Court, it was
observed by this Court that it was open to the Government to decide
how many appointments should be made and although the High Court
had appreciated the position correctly, it had "somehow persuaded
itself to spell out a right in the candidates because in fact there were 15
G vacancies". It was expressly ruled that the existence of vacancies does ~
not give a legal right to a selected candidate. Similarly, the claim of
some of the candidates selected for appointment, who were petitioners
in Jitendra Kumar and Others v. State of Punjab and Others, was
turned down holding that it was open to the Government to decide
how many appointments would be made. The plea of arbitrariness was
H rejected in view of the facts of the case and it was held that the candi·

\
SHANKARSAN DASH v. U.0.1. !SHARMA, J.l 573
dates did not acquire any right merely by applying for selection or
even after selection. It is true that the claim of the petitioner in A
the case of Miss Nee/ima Shangla v. State of Haryana, was allowed
by this Court but, not on the ground that she had acquired any right by
her selection and existence of vacancies. The fact was that the matter
had been referred to the Public Service Commission which sent to the ·
Government only the names of 17 candidates belonging to the general
B
category on the assumption that only 17 posts were to be filled up. The
Government· accordingly made only 17 appointments and stated
before the Court that they were unable to select and appoint more
candidates .as the Commission had not recommended any other candi-
date. In this background it was observed that it is, of course, open to
the Government not to fill up all the vacancies for a valid reason, but
the selection cannot be arbitrarily restricted to a few candidates c
notwithstanding the number of vacancies and the availability of qua-
lified candidates; and, there must be a conscious application of mind
by the Government and the High Court before the number of persons
selected for appointment is restricted. The fact that it was not for the
Public Service Commission to take a decision in this regard was
emphasised in this judgment. None of these decisions, therefore, sup- D
ports the appellant.
9. Mr. Goswami appearing in support of the appeal has con-
tended·that in view of the relevant statutory rules, the authorities were
under a duty to continue with the process of filling up all the vacancies
until none remained vacant. Reference was made to r. 4 of the Indian E
Police Service (Cadre) Rules, 1954, rr. 3, 4, 6 and 7 of the Indian
Police Service (Recruitment) Rules, 1954 and rr., 2(1)(a), 2(1)(c), 8
and 13 of the Indian Police Service (Appointment by competitive
Examination) Regulations, 1965. We do not think any of these rules
comes to the aid of the appellant. Rule 3 of the Cadre Rules directs
constitution of separate cadres for States or group of States, and r. 4 F
empowers the Central Government to determine the strength in con-
sy.Jtation with t_he State Governments. The strength has to be re-
examined at intervals of. 3 years. Rule 3 of Recruitment Rules deals
with the constitution of the Service, and r. 4 the method of recruit-
ment. Rules 6 and 7 give further details in this regard. The learned
counsel could not point out any provision indicating that all the G
notified vacancies have to be filled up. Similar is the position with
respect to the Competitive Examination Regulations. Regulation
2(1)(a) defines available vacancies as vacancies determined by the
Central Government to be filled on the results of the examination,
described in Regulation 2(l)(a). Regulation 8 prescribes that the
candidates would be considered for appointment to the available H
574 SUPREME COURT REPORTS . [1991] 2 S.C.R.

A vacancies subject to provisions 9 to 12 and Regulation 13 clarifies the
position that a candidate does not get any right to appointment by
mere inclusion of his name in the list. The final selection is subject to
satisfactory report on the character, antecedent and suitability of the
candidates. We, therefore, reject the claim that the appellant had
acquired a right to be appointed against the vacancy arising later on the
B basis of any of the rules.

10. The main contention on behalf of the appellant has been,
however, that the authorities in keeping the vacancies arising later
unfilled, acted arbitrarily. Mr. Goswami referred to several documents
annexed to the special leave petition and affidavits filed on behalf of
the parties and contended that although appointments of many candi-
c dates in the other services were made in the later vacancies, the
vacancy in the Indian Police Service which subsequently bacame avail-
able to the appellant was refused without any just cause, resulting in illegal
discrimination. This was emphatically denied on behalf of the respon-
dent. Since the matter did not appear to be free from ambiguity on the
D basis of the affidavits before us, we decided to examine the factual
aspects more thoroughly by examining the other available materials on
the records of the Union of India, and accordingly the learned counsel
for the respondent got the relevant departmental files called. Two
further affidavits were also filed along with photostat copies of a large
number of documents, which we examined at some length with the aid
E of the learned advocates for both sides. From the materials produced
before us it is fully established that there has not been any arbitrariness
whatsoever on the part of the respondent in filling up the vacancies in
question or the other vacancies referred to by the learned counsel for
the appellant. The process of final selection had to be closed at some
stage as was actually done. A decision in this regard was accordingly
F taken and the process for further allotment to any vacancy arising later
was closed. Mr. Goswami relied upon certain appointments actually
m~de subsequent to this stage and urged that by those.dates the further
vacancies in the Indian Police Service had arisen to which the appel-
lant and the other successful candidates should have been adjusted.
We do not find any merit in this contention. It is not material if in
G pursuance of a decision already taken before closing the process of
final selection, the formal appointments were concluded later. What is
relevant is to see as to when the process of final selection was closed.
Mere completing the formalities cannot be of any help to the ap.pel-
lant. We do not consider it necessary to mention all the details in this
connection available from the large number of documents which we
H closely examined during the hearing at considerable length and do not
SHANKARSAN DASH v. U.0.1. [SHARMA, J.] 575

have any hesitation in rejecting the argument of the learned counsel in A
this regard based on the factual aspect.

11. So far the decision to adopt a different policy with respect to
filling up of the reserved vacancies is concerned the same is justified on
account of the special circumstances mentioned in the respondent's
B
affidavits. The decision to depart from the confirmed policy was taken
after a consideration by the authorities of the position in regard to
unavailability of qualified candidates from' year to year adversely
affecting the desired strength of the reserved candidates in the servii:es
and cannot be condemned on the grounds of arbitrariness and illegal
discrimination.
c
12. In the result, we do not find any merit in the appeal which is
accordingly dismissed, but, in the circumstances, without costs.

N.P.V. Appeal dismissed.