Holding

Empanelment does not confer an indefeasible right of appointment; the High Court's direction to fill vacancies up to 1991 is set aside, and only vacancies up to 31 December 1988 are to be filled.

Summary

The Bihar State Subordinate Services Selection Board advertised for Assistant posts, held an examination in 1987 and declared results only in 1990, empaneling 309 candidates for 357 vacancies. The empanelled candidates sought appointment, but the State Government refused and ordered a fresh advertisement. The Patna High Court directed the Board to fill vacancies up to 1991 from the empanelled list, which the State challenged before the Supreme Court. The Supreme Court held that empanelment alone does not confer an indefeasible right of appointment and that the High Court's direction to fill vacancies up to 1991 was improper. It limited the obligation to fill only those vacancies that existed up to 31 December 1988. The Court set aside the part of the High Court judgment concerning vacancies of 1989‑1991 and directed the State to issue a fresh advertisement, conduct a new examination and complete the selection process within specified time‑frames. The appeal was disposed of with these modifications.

Issues considered

Whether empanelment of candidates creates a vested right to appointment.
Whether the High Court's direction to fill vacancies up to 1991 from the empanelled list is legally valid.
Whether the State is obligated to fill only vacancies existing up to 31 December 1988.
Whether a fresh advertisement and examination are required for subsequent vacancies.

Subjects

empanelmentright to appointmentvacancyselection boardservice lawadministrative lawappointmentmerit listfresh advertisementexamination delay

Judgment

A STATE OF BIHAR
.• v.
THE SECRETARIAT ASSISTANT SUCCESSFUL EXAMINEES
UNION 1986 AND ORS.

OCTOBER 8, 1993
B
(M.N. VENKATACHALIAH, CJ AND DR. A.S. ANM:l9, J.]
Service Law

C Bihar State Subordinate Services-Appointment to the post of Assis-
tants in the Secretariat-Candidates empanelled on the select list, Whether
acquire a right of appointment.

The Bihar State Subordinate Services Selection Board;iiivited ap-
plications from unemployed Graduates for appointment to the post ·of
D Assistants in the Secretariat and other connected offices of the Govern-
ment of Bihar in the vacancies up to the year 1985-86. 309 candidates out
of those who had qualified in the examination were given appointmentS as
against the 357 vacancies notified by the Government. Candidates securing
more than 50 per cent marks in the general category and whose names
E were in the select list were empanelled and made to wait in anticipation of
the release of further vacancies. The empanelled candidates represented
to the State Government for appointment against the vacancies as avail·
able on the date of the publication of the result. The representation was
rejected. The State Government, on 8.8.91 issued a letter to the Board to
issue a fresh advertisement for appointment of Secretariat Assistants. The
F empanelled selectees who were not appointed filed a writ petition before
the High Court seeking a direction to appoint them. The High Court
directed the Board to fill up the vacancies up to 1991 from the list of
selected candidates who were empanelled after the declaration of the result
in 1990.
G
Dispos'ing of the appeal, by special leave, [preferred] by the State,
this Court. ·

HELD: 1.1. A person who is selected does not, on account of being
empanelled alone, acquire any indefeaS'able right of appointment. Em:-
--H panelment is at the best a condition of eligibility for purposes of appoint-
134
STATEv. S.AS. [DR.ANAND,J.] 135

ment, and by itself doses not amount to selection or create a vested right A
to be appointed unless relevant service rule says to the contrary. (138-C-D]

1.2. In the instant case, the directions given by the High Court for
appointment of the empanelled candidates according to their position in
the merit list against the vacancies till 1991 was not proper. Since no
examination has been held since 1987, persons who became eligible to B
compete for appointments were denied the opportunity to take the ex-
amination and the direction of the High Court would prejudicially affect
them for no fault of theirs. (138-E-F]

1.3. There is no justification for holding the examination two years C
after the publication of advertisement and declare the result almost three
years after the holding of the examination for making selections. The
callousness of the. State has caused great hardship to the successful
candidates. The State was expected not to act in such a leisurely manner
and treat the matter of selection for appointment to services in such a
causal manner. [138-F-H] D
Shankarsan Dash v. Union of India, [1991) 3 S.C.C. 47 and Sabita
Prasad & Ors. v. State of Bihar & Ors., [1992) 3 Scale 361.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5298 of E
1993.

From the Judgment and order dated 11-10-91 of the Patna High
Court in C.W.J. C.No. 2912/91.

P.P. Rao and B.B. Singh for the appellants.
F
Govinda Mukhoty, A. Sharan, Anil Tiwary, S.P. Singh and Irshad
Ahmad for the respondents.

The Judgement of the Court was delivered by
G
DR. ANAND, J. Leave granted.

The Bihar State Subordinate Services Selection Board (hereinafter
referred to as the 'Board') issued advertisement No.11/85 inviting applica-
tions from unemployed Graduates for appointment to the post of Assis-
tants in the Secretariat and other connected offices of the Government of H
'"' .r-·
136 SUPREME COURT REPORTS [1993] SUPP. 3 S.C.R.

A Bihar. It was stated in the advertisement the vacancies upto the year
1985-86 were to be filled up, after holding an examination. The number of
vacancies, however, was not notified. The examination was held at different
examination centers within the State in November, 1987. The result of the
examination, however, was published only in July, 1990. Vide a communica-
B tion dated 25.8.1997 issued by the Joint Secretary in the Department of
Personnel and Administrative Reforms to the Secretary' of the Board, the
break-up of the vacancies in a tabulated form, indicating the total number
of vacancies, as then existing, to be 357, was provided. On the recommen-
dation of the Board dated 31.7.1990, 309 candidates out of those who had
qualified in the examination were given appointments. Candidates securing
C more than 50 per cent marks in the general category and whose names
were in the select list were empanelled and made to wait in anticipation of
the release of further vacancies by the State. Since, the vacancies available
uptil 31.12.1988 were not disclosed or communicated to the Board despite
enquiries, no further appointments could be made. Candidates who had
D applied for employment in response to the advertisement published in 1985
and were selected and empanelled after being brought on the select list in
the order of their merit after the result was declared in 1990, found their
: expectations and hopes being belied and frustrated. They represented to
the State Government for appointment· against the vacancies as available
on .the date of the publication of the result. Their representation was
E rejected. On 8.8.1991 a letter was issued by the State Government requiring
_ the Board to issues fresh advertiseme.nt for appointment of Secretariat
Assistants and holding of fresh competitive examination. The aggrieved
empanelled selectees, accordingly, approached the High Court of Patna
through Civil Writ Petition No.291/91 seeking a direction to appoint them.
p In the . High Court a plea was raised by the writ petitioners that since
normal\practice ·and procedure be~g followed by the State over the years
had been that the vacancies available till the date of the publication of the
result were filled up by the candidates brought on the merit list, all the
empanelled candidates on the select list were entitled to be appointed
against the vacancies as existing on the date of the publication of the result
G in 1990. The plea of the State on the other hand was that though number
of vacancies had arising duri.Ilg the period 1985-90 that fact alone could
not clothe the empanelled candidates on the select list with any right to
appointment or claim adjustment against the vacancies arising after 1988.

H The High Court Mticed that there had been no fresh advertisement
-
-.) STATEv. S.AS. [DR.ANAND,J.] 137

after 1985; that the result of the examination held in 1987 was declared in A
1990; that there were existing vacancies and that the empanelled candidates
had been waiting in the wings all through for no fault of theirs expecting
their appointments. The High Court, therefore, held:

"Considering the peculiar circumstances of the present case, there-
fore, we quash Annexure 16 dated 8.8.1991 and in order to do B
justice between the parties and not to leaye these young graduates,
In lurch, we direct the Board to recommend the names of these
petitioners in accordance with their seniority in the merit list for
appointment on the posts of Secretariat Assistants in accordance
with the existing vacancies as available on the date of publication C
of their result, i.e. July, 1990."

The High Court also directed the filling up of the vaeancies upto
1991 from the list of selected candidates who had been empanelled after
the declaration of the result in 1990.
D
The State of Bihar has, through the present appeal, challenged the
judgment of the High Court.

On 12.5.1992, after considering the facts and circumstances of the
case and hearing learned counsel for the parties, we made the following E
order:

"We are not in agreement with Mr. Rao's stand that the entire
impugned judgment is erroneous and requires reconsideration.
However, we do consider that notice should be issued asking the
respondents to show cause as to why special leave may not be F
granted against that part of the judgment which directs all the
vacancies upto 1991 to be filled up from the list of candidates who
had appeared in the examination held in 1987 and why the
impugned judgment may not be modified so as to remain operative
with respect to the vacancies arising up to 31.12.88 only. Since the G
respondents are already appearing through counsel, they may get
already with this aspect of the case. The case may be finally
disposed of at the present state of found practicable.

There is some controversy with respect to the number of
vacancies available upto 31.12.88. The parties may file further H
138 SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A affidavits dealing with this question."

We directed the stay of that part of the impugned judgment under
which the State was obliged to fill up the vacancies which arose in the years
1989, 1990 and 1991. Directions were, however, issued by this Court on
12.5.92 to fill up the vacancies as existing till 1988 promptly.
B
Counters and rejoinders have been filed but the confusion as regards
the actual number of vacancies persists and there is a serious dispute
between the parties on that score.

C In the view that we propose to take, we need not detain ourselves to
sort out that wrangle or consider the elaborate submissions made at the
bar.

It is now well settled that a person who is selected does not,· on
account of being empanelled alone, acquire any indefeasable right of
D appointment. Empanelment is at the best a condition of eligibility for
purposes of appointment, and by itself does not amount to selection or
create a vested· right to be appointed unless relevant service rule says to
the contrary. (Sec Shankarsan Dash v. Union of India, [1991] 3 SCC 47 and
Sabita Prasad & Ors. v. State in Bihar & Ors., [1992) 3 Scale 361).
E We are, therefore, of the opinion that the directions given by the
High Court for appointment of the empanelled candidates according to
their position in the merit list against the vacancies till 1991 was not proper
and cannot ·be sustained. Sinee, no examination bas been held since 1987,
persons who became eligible to compete for appointments were denied the
F opportunity to take the examination and the direction of the High Court
would prejudicially effect them for no fault of theirs. At the same time, due
to the callousness of the State in holding the examination in 1987 for the
vacancies advertised in 1985 and declaring the result almost three years
later in 199Q has caused great hardship to the successful candidates. The
State was expected not to act in the such a leisurely manner and treat the
matter of selection for appointment to services in such a causal manner.
We must record our unhappiness on this state of affairs. There is no
justification for holding the examination two years after the publication of
advertisement and declare the result almost three years after the holding
of the examination and not issuing any fresh advertisement between 1985
H and 1991 or holding exainination for making selections. We expect the State
- STATE v. S.A.S. [DR. ANAND, J.]

Government to act in a better manner, at least, hereinafter and since Mr. A
139

Rao, and learned senior counsel has shared our concern and assured us of
advising the State Government accordingly, we say no more on that aspect
at this stage.

Keeping in view the fact situation and the circumstances of the case
and having been informed by Mr. P.P. Rao, the learned senior counsel B
appearing for the State that there are a large number of vacancies which
are required to be filled up, the order which commends and appears
appropriate to us is too modify the juc!gment of the High Court dated
11.10.91 by setting aside that part of the judgment which directs the filling
up of the vacancies of 1989, 1990 and 1991 from out of the list of the C
candidates who had appeared in the examination held in 1987. We accord-
.ingly, set aside that portion of the judgment but uphold the judgment in all
other respects including the filling up of the vacancies which existed till
31.12.1988. Further, with a view to do justice between the parties and
balance the equities, we issue the following directions:
D
(i) That the appellant State of Bihar shall issue an advertisement
inviting applications for the posts of Assistants within 4 weeks
from the date of this judgment.

·(ii) That the advertisement shall indicate the total number of E
vacancie:s actually existing and likely to arise in the cadre till
31.12.1993 which are required to be filled up. Thus, apart
from the existing vacancies of 1989-1992 the probable vacan-
cies till 31.12.93, shall also the included while indicating the
number of vacancies to be filled up.
F
(iii) That the age bar shall be relaxed in favour of candidates of
the 1987 examination who had secured 40% or above marks
in that examination, to enable them to appear in the fresh
examination, if they so choose.

(iv) That the selection process including the holding of the ex-
G
amination and publication of the select list shall be completed
within a period of 9 months from the date of the publication
of the advertisement/notification inviting applications.

(v) That after the publication of the select list, the appointments H
140 SUP~EME COURT REPORTS (1993] SUPP. 3 S.C.R.

A shaJ!be made within 4 weeks from the date of the publication
of the select list.

(vi) That, the rules relating to reservation etc. shall apply to the
selections to be made;

B With the above modification and direction, the appeal is disposed of.
There shall be no order as to costs.

Appeal disposed of.