Holding

A merit list under Rule 9(3) is valid for one year; a candidate has no legal right to appointment, and the appointment may be continued as if from the date of joining under Article 142.

Summary

In Rajasthan, teachers are recruited annually under the Rajasthan Education Subordinate Service Rules, 1971. Jagdish Chopra, placed at serial No.10 in the 1995-96 merit list, was not appointed after the candidate at serial No.8 failed to join and the vacancy was carried forward. He filed a writ petition; the High Court Single Judge held he had no legal right to appointment, but the Division Bench set aside that order and directed his appointment without deciding the validity of the merit list. The State appealed, and the Supreme Court held that, under Rule 9(3), a merit list is valid for only one year and a candidate has no indefeasible right to appointment. While the Division Bench’s direction for retroactive service benefits was unwarranted, the Court, invoking Article 142, allowed the appointment to continue as if it had taken effect from the date of joining, given the long pendency and the State’s prior appointment. The appeal was partly allowed.

Issues considered

The period of validity of a select/merit list under Rajasthan Education Subordinate Service Rules, 1971 Rule 9(3).
Whether a candidate listed in a merit list acquires a legal right to appointment.
Whether the Division Bench was justified in directing retroactive service benefits.
Whether the Supreme Court can, under Article 142, validate the appointment despite earlier rulings.

Legislation cited

Constitution of Indias. Article 142

Subjects

service lawrecruitmentmerit list validityRajasthan Education Subordinate Service RulesArticle 142appointment rightspublic servicewaiting listservice benefits

Judgment

l-
STATE OF RAJASTHAN AND ORS. A
v.
JAGDISH CHOPRA

AUGUST 30, 2007

(S.B. SINHA AND HARJIT SINGH BEDI, JJ.) B

Service Law:

Rajasthan Education Subordinate Service Rules, 1971-Rule 9 (3)-
Recruitment under-Candidate applied for. the post of teacher and pfaced at C
serial no. JO in select list for a particular year-Non-joining of candidate
at serial no 8-Vacant post carried forward to next year-Candidate at
serial no JO in select list of previous year applied but not appointed-Single
Judge of High Court holding that candidate had no legal right to be
appointed-Set aside by Division Bench-On appeal, held: Single Judge was D
right in holding that candidate has no legal right to be appointed-However,
during the pendency of SLP, the State appointed the candidate not due to
his merit but due to the orders of Division Bench-Thus, in exercise of
jurisdiction under Article 142 and long pendency of the matter, appointment
to be continued-Constitution of India, 1950-Article 142.
E
In the State ofRajasthan, teachers were employed on yearly basis and
vacancies for each year was determined separately. In 1995-96, vacancies
arose and 19 posts were to be filled up by teachers (physical education).
Respondent applied for the post and his name was at serial No.10 of the select
. >- list prepared. Candidate at serial No.8 in the merit list did not join and the F
said vacant post was carried forward to the next year. Respondent applied for
the same post in the said year and could not be appointed since he was placed
at serial No.23 in the merit list. Aggrieved, respondent filed writ petition.
The Single Judge of High Court dismissed the petition holding that the
respondent had no legal right to be appointed since the validity of the merit
list had expired. Division Bench set aside the order of Single Judge without G
deciding whether the se~t list has remained valid or not. Hence the present1
appeal

Partly allowing the appeal, the Court

599 H
600 SUPREME COURT REPORTS [2007] 9 S.C.R.

A HELD: 1.1. Recruitment for teachers in the State of Rajasthan is
governed by the statutory rules. Therefore, all recruitments are required to
be made in terms thereof. Although Rule 9(3) of the Rajasthan Education
Subordinate Service Rules, 1971 does not specifically provide for the period
for which the merit list shall remain valid but the intent of the legislature is
B 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. The Single Judge of the High Court was correct in holding that
the respondent has no legal right to be appointed.
C [Paras 7 and 8) (603-D, E; 604-A)

Shankarasan Dash v. Union ofIndia, {1991) 2 SCR 567 and Asha Kaul
(Mrs.) and Anr. v. State ofJammu and Kashmir and Ors., (1993) 2 SCC 577,
relied on.

D State of Bihar and Ors. v. Amrendra Kumar Mishra, (2006) 9 SCALE
549; K. Jayamohan v. State of Kera/a and Anr., [1997) 5 SCC 170; Munna
Roy v. Union of India and Ors., (2000) 9 SCC 283; All India SC and ST
Employees' Association and Anr. v. A. Arthur Jeen and Ors., (2001) 6 SCC
380; Food Corporation of India and Ors. v. Bhanu Lodh and Ors., [2005) 3
SCC 618 and Pitta Naveen Kumar and Ors. v. Raja Narasaiah Zangiti and
E Ors., (2006) 10 SCC.261, referred to.

1.2. The Division Bench was not at all justified in directing grant of
service benefits to the responden_t from the date on which the appointed
candidate at serial No.9 in the merit list ought to have joined the post. Such
F a direction is wholly unwarranted. However, the impugned judgment cannot --{ .
be set aside because of the fact that the· State has appointed the respondent
not by reason of his merit in the select list but by reason of the orders of the
High Court during the pendency of this Special Leave Petition. Furthermore
even a stay of further proceedings in the contempt petition has been passed
by this Court. Therefore, in exercise of jurisdiction un~er Article 142 of the
G Constitution of India and in view of the fact that matter is pending for a long
time it is directed that the, respondent may be continued as ifhe was appointed
on and from the date he joined the service. (Para 11) (605-G; 606-A-C)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3987 of2007.

H From the final Judgment ~md Order dated 19 .04.2005 of the High Court
STATE v. JAGDISH CHOPRA [S.B. SINHA, J.] 601

ofRajasthan at Jaipur Bench, Jaipur in D.B.Special Appeal (Writ) No.1462 of A
1997.

Aruneshwar Gupta, Adv. Genl. Naveen Kumar Singh, Mukul Sood,
Shashwat .Gupta and Adarsh Sabharwal for the Appellants.
\
Aishwarya Bhati for the Respondent. B
The Judgment of the Court was delivered by

S.B. SINHA, J. I. Leave granted.

2. Appellant-State employs teachers on yearly basis. Vacancies for each C
year are separately determined. Recruitment ofteachers is made in terms of
Rajasthan Education Subordinate Services Rules, 1971 (the Act). It remains
valid for one year that is from the first day of April to 31st March. Rule 9(3)
of the said Rules read thus ;

"Rule 9(3) Whether vacancies can be determined more than once in D
a year.

Vacancies shall be determined only once a year: Vacancies occurring
after the Departmental Promotion Committee meeting has been held
shall be treated as the vacancies of the next year. Variation in the
vacancies that may crop up between the date of requisitioning the E
Department Promotion Committee and the date of Departmental
Promotion Committee meeting held shall be taken into account at the
Departmental Promotion Committee meeting."

_ -..... 3. For the year 1995-96, there were 33 vacancies and advertisements
were issued therefor. Respondent herein was one of the applicants for the F
said post. The Selection Committee prepared a select list. The respondent's
name figured at serial No. I 0 of the said list. Out of 33 vacancies, 19 posts
were to be filled up by Teachers (Physical Education) and 14 posts were
meant for Teachers (Grade-III). Out of 19 posts of Teachers (Physical
Education), 9 posts were for General Category candidates; 5 posts were G
reserved for OBC candidates; 2 posts for Scheduled Castes candidate and
one post for Scheduled Tribes candidate. One post was to be filled on the
'~ vacancies arising out of appointment on compassionate grounds. The date
of joining was fixed on 12.04.1996. The candidate placed at serial No.8 in the
merit list did not join. The vacant post was said to have been carried forward
to 1996-97. Respondent had also applied for the post of Teacher (Physical H
602 SUPREME COURT REPORTS [2007) 9 S.C.R.

A Education) in the said year but he was been placed at serial No.23 in the merit -<
list and, thus, was not found fit to be appointed in 1996-97 als~.:

He filed a writ petition before the Rajasthan High Court. On the premise
that the validity of the merit list had expired, a learned Single Judge'of the
said High Court opined that he had no legal right to be appoint~d stating :
B
"Since, respon_dent prepares a new panel every year and it will remain
effective prior to the end of that session, i.e., till March. Hence, after
the expiry of duration of panel, the candidates included in that panel,
will not have remained any legal right to be appointed. In the present
case also, the duration of the panel has been expired and appointments
c have already been made in accordance with the same ... "

4. An intra-court appeal was preferred thereagainst. A Division Bench
of the High Court, however, reversed the said decision without adveiting" to
the question as to whether the select list has remained valid or not. It was
D held:

"Taking into consideration all the facts and circumstances of the case,
the defence taken that till 31st of March, 1996 there was no post
vacant in the Department, is difficult to accept. The Petitioner did all
whatever he could have done at the relevant time to protect his right
E of consideration for appointment. The ground on which the writ
petition was dismissed is not tenable.

As a result of the aforesaid discussion this appeal succeeds and
the same is allowed. The order dated 1.9.1997 of the learned Single
Judge in S.B. Civil Writ Petition No.4599/1996, impugned in this appeal,
F is quashed and set aside. The writ petition is allowed and declared
post of Teacher (Physical Education) fallen vacant due to' non-joining
of the appointed candidate stood at serial No.8 of the merit list. The
Respondents are directed to give appointment to the Petitioner on the
post of Teacher (Physical Educa~ion), within a period of one month
from the date of receipt of the copy of this judgment. :rtie appointment
G shall relate back to the date on which the appointment· candidate
stood at serial No.9 of the meri.t list, ought to have joined the post.

The Petitioner appellant shall not be entitled for the actual monetary
benefits for the intervening period i.e. the date on which he would
have joined the service and the date of his actual joining, however,
H this period shall be counted for other service and retrial benefits."
STATE v. JAGDISHCHOPRA [S.B. SINHA,J.] 603

5. The State is, thus, in appeal before us. A
Mr. Aruneshwar Gupta, Additional Advocate General, appearing on
behalf of the appellant submitted that the respondent did not have any legal
right to be appointed, particularly, when the validity of a merit list is confined
only to one year.
B
6. Mr. Aishwarya Bhati, learned counsel appearing on behalf of the
respondent, on the other hand, urged that as the candidates were to join their
posts on 12.4.1996, the State itself did not adhere to the period during which
of the vacancies were required to be filled up. According to the learned
counsel, respondent has already joined his services.
c
Learned counsel submitted that Rule 9(3) does not fix the period of
validity of the panel and in that view of the matter, the respondent, who was
on the wait list, should have been appointed as one of the selected candidates
could not join.

7. Recruitment for teachers in the State of Rajasthan is admittedly D
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 E
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 & Ors. v. Amrendra Kumar Mishra,
(2006) 9 SCALE 549, this Court opined:

"In the aforementioned situation, in our opinion, he did not have any F
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 :
G
"The decision noticed hereinbefore are authorities for the proposition
that even the waitlist must be acted upon having regard to the terms
of the advertisement and in any event cannot remain operative beyond
the prescribed period."

8. The learned single Judge of the High Court was, therefore, correct in H
604 SUPREME COURT REPORTS [2007) 9 S.C.R.

A holding that the second respondent has no legal right to be appointed.

It is well settled principle of law 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 Anr. v. State ofJammu and Kashmir
and Ors., (1993) 2 SCC 577)
B
In K. Jayamohan v. State of Kera/a and Anr., ( 1997) 5 SCC ·170), this
court held:

"5. lt is settled legal position that merely ·because a candidate is
selected and kept in the waiting list, he does not acquire any absolute
c right to appoir:itment. It is open to the Government to make t~e
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
D
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 Ors., [2000) 9 SCC 283]

E In All India SC & ST Employees' Association and Anr. v. A. Arthur
Jeen and Ors., [2001] 6 SCC 380, it was opined:

"l 0. 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
F
vacancies as laid down by the Constitution Bench of this Court, after
referring to earlier cases in Shankarsan. Dash .v. Union of India. Para
7 of t~e said judgment reads thus :-

"It is not correct to say that if a number of vacancies are notified for
G 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 il'fvitation to qualified candidates to apply for recruitment
and on their selection they do not acquire any right to the post.
Unless the relevant recruitinent rules so indicate, the State is under
H no legal duty to fill up all or any of the vacancies. However, it does
STATE v. JAGDISH CHOPRA [S.B. SINHA, J.] 605
not mean that the State has the licence of acting in an arbitrary A
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 B
by this Court, and we do not find any discordant note in the decisions
in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla
v. State of Haryana or Jatendra Kumar v. State of Punjab."

9. The principles laid down in the aforementioned cases have been
followed by this Court in Food Corporation of India and Ors. v. Bhanu Lodh C
and Ors., [2005] 3 SCC 618 stating:

"14. 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 D
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 judicial E
review ..."

10. In Pitta Naveen Kumar and Ors. v. Raja Narasaiah Zangiti and
· >- Ors., [2006] IO SCC 261, this Court observed:

"The legal position obtaining in this behalf is not in dispute. A F
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 G
• .1.., concerned and not otherwise ..."

11. Furthermore, the Division Bench was not at all justified in directing
grant of service benefits to the respondent from the date on which the
appointed candidate at serial No.9 in the merit list ought to have joined the H
606 SUPREME COURT REPORTS [2007] 9 S.C.R.

A post. Such a direction, in our opinion, is wholly unwarranted.

We, however, cannot set aside the impugned judgment because of the
fact that the State has appointed the respondent during the pendency of this
Special Leave Petition. We may furthermore notice that even a stay of further
proceedings in the contempt petition has been P.assed by this Court by an
B order dated 16.05.2007. We, therefore, are of the opinion that it will not be
proper for this Court now at this juncture to set aside the said appointment
as the appointment granted in favour of the respondent by the State was hot
by reason of his merit in the select list but by reason of the orders of the High
Court. We, therefore, in exercise of our jurisdiction under Article 142 of the
C Constitution of India and keeping in view the fact that the matter is pending
for a long time, are of the opinion that a direction should be issued that the
appointment of the respondent may be directed to be continued as if he was
appointed on and from the date he joined the service.

12. The appeal is allowed to the afore mentioned extent. Parties are left
D to bear their own costs.

N.J. Appeal partly allowed.