THE VICE CHANCELLOR, UNIVERSITY OF ALLAHABAD AND ORS.versusDR. ANAND PRAKASH MISHRA AND ORS.

THE VICE CHANCELLOR, UNIVERSITY OF ALLAHABAD AND                                  A
                                    ORS.
                            v.
            DR. ANAND PRAKASH MISHRA AND ORS.

                           DECEMBER 16, 1996
                                                                                  B
            (K. RAMASWAMY AND G.T. NANAVATI, JJ.]

      U.P. Public Services (Reservation of Scheduled Castes, Scheduled
Tribes and Backward Classes) Act, 1994: Sections 1(2), 2(c), 3, 4, 6 and 15
and Explanation.                                                                  C
     Service Law-Scheduled Castes/Scheduled Tribes and Backward Clas-
ses-Reservation in favour of-Provisions for-Implementation
of-Provisions of Act.

      U.P. State Universities Act, 1973 :                                         D
     Section 68-University-Direction for appointment given by Chancel-
lor-Validity of

      Service Law-Selection process-:-lnitiation of-Must be in accordance
with the law existing as on the date of selection.                                E
      Se1vice Law-Select list-Rights of candidates on panel.

      Law-Power of Legislature to make law with retrospective effect.

      Mandamus--Cannot be issued in violation of law.                             F

       Allahabad University-Recruitment to various post~Initiation of
process--Coming into force of Reservation Act of 1994-Act providing for
reservation in favour of SC/ST and backward classes-Duty of specified
officer to ensure compliance with provisions--Consequently on the basis of        G
implementation of provisions of Act fresh advertisement issued for appoint-
ment of two Reader~Representation made by ·respondents-Direction by
Chancellor to appoint respondent~Validity of-Held the process of selection
to the post of Reader involves only interview-Thereby, the process of selection
was initiated after the Act had come into force without applying the provisions
of sub-section (1) of Section 3 of the Act-Therefore, the process of selection    H
                                       175
    176                   SUPREMECOURTREPORTS[1996] SUPP. lOS.C.R.

A and preparation of merit list was in violation of the provisions of the Act-The
  process of selection must be in accordance with the law existing as on the
  date ofselection:-Keeping a candidate in the waiting list does not confer any
  vested 1ight in his favour much less indefeasible right-The Vice-Chancellor,
  therefore, was obliged under the Act and vested with duty and right in taking
B action to have the vacancies notified applying Section 3(1) of the Act for
  recruitment in accordance with law-The process of selection having started
  prior to that date was required to be dealt with as per pre-existing law-The
  selection, after the coming into force of the Act was to be made by applying
  Section 3(1)--Ihe direction issued by the chancellor to make appointment of
  the respondents, though under the provisions of Section 68 of the Universities
C Act was in violation of the Act since Section 3(1) has been made applicable
  with retrospective effect from December 11, 1993.

         Shankarsan Dash v. Union of India, [1991] 2 SCR 567; State of
  Andhra Pradesh v. T. Ramakrishna Rao & Ors., (1972] 4 SCC 830; State of
  Haryana v. Subash Chander Marwaha & Ors., (1974] 1 SCR 165; Union
D Territory of Chandigarh v. Dilbagh Singh & Ors., [1993] 1 SCC 154; Nagar
  Mahapalika, Kanpur v. Vinod Kumar Srivastava & Ors., AIR (1987) SC 847;
  N.T. Bevin Katti v. Kamataka Public Service Commission & Ors., AIR (1990)
  SC 1233 and Babita Prasad & Ors. v. State of Bihar & Ors., (1993] Supp. 3
    sec 268, relied on.
E
         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 16980 of
    1996 Etc.

         From the Judgment and Order dated 16.8.95 of the Allahabad High
    Court in C.M.W.P. No. 19104 of 1995.
F
          P.P. Rao, Aseem Mehrotra and AP. Medh for the Appellants.

          AP. Singh and A Sharan for the Respondents.

          The following Order of the Court was delivered :
G
          Leave granted. We have heard learned counsel on both the sides.

          Prior to December 12, 1993, the appellant had initiated the process
    of selection to various posts in the appellant university. The UP Public
    Services (Reservation of Scheduled Caste, Scheduled Tribes and Backward
H   Classes) Act 4 of 1994 (for short, the 'Act') came into force with effect
        VICECHANCElLOR, UNIVERSITYOFALLAHABADv. DR AP.MISHRA 177

    from March 22, 1994. By operation of Section I (2), the Act came into force      A
    from December 11, 1993, i.e., the date on which Ordinance was issued.
    Secti.on 2( c) of Act defines "public services and posts" to mean the services
    and posts in connection with the affairs of the State and includes services
    and posts in clause (iv) which is as under :

             "(iv) an educational institution owned and controlled by the State      B
             Government or which receives grants in aid from the State Govern-
             ment, including a university established by or under the Uttar
             Pradesh Act, except an institution established and administered by
             minorities referred to in clause (i) of Article 30 of the Constitu-
             tion."                                                                  c
          Section 3 of the Act envisages reservation in favour of Scheduled
    Castes, Scheduled Tribes and other Backward Classes, at the stage of
    direct recruitment; the fol\owing percentage is prescribed therein:

          (a)     in the case .of Scheduled Castes          21 per cent              D
          (b)     in the case of Scheduled Tribes           02 per cent

          (a)     in the case of other Backward
~                 Classes of Citizens                       27 per cent.
                                                                                     E
          Section 4 of the Act casts responsibility on, and gives power to,
    specified officers for ensuring compliance of the provisions of the Act. The
    State Government may, by notified order, entrust the appointing authority
    or any officer or employee with the responsibility of ensuring compliance
    of the provisions of the Act. It is not in dispute that the State Government
    had issued a notification dated May 5, 1995 entrusting the responsibility        F
    for implementation of the provisions of the Act, in relation to the appoint-
    ment in service and posts in the university, on the Vice-Chancellor. Thus,
    the Vice-Chancellor is empowered and made responsible to implement the
    provisions of the Act.
                                                                                     G
           Section 6 gives power to the Government to call for the records and
    ·direct enforcement of the provisions of the Act. It reads thus :

             "6. Power to call for record. - If it comes to the notice of the State
             Government, that any person belonging to any of the categories
             mentioned in sub-section (1) of Section 3 has been adversely H
    178                   SUPREME COURT REPORTS(1996J SUPP. 10 S.C.R.

A           affected on account of non-compliance of the provisions of this
            Act or the rules made thereunder or the Government order in this
            behalf by the appointing authority, it may call for such records and
            take such action as it may consider necessary."

          Section 15 which is relevant for the purpose of this case is as
B under:

            "15. Savings - (1) The provisions of this Act shall not apply to cases
            in which selection process has been initiated before the co=en-
            cement of this Act and such cases shall be dealt with in accordance
            with the provisions of law and Government orders as they stood
c           before such commencement.

            Explanation - For the purpose of this sub-section the selection
            process shall be deemed to have been initiated where, under the
            relevant service rules, recruitment is to be made on the basis of -
D
            (i)   written test or interview only, the written test or the interview, ·
                  as the case may be, has started, or

            (ii) both written test and interview, the written test has started.

            (2) The provisions of this Act shall not apply to the appointment,
E           to be made under the Uttar Pradesh Recruitment of Dependent
            of Government Servant Dying in Harness Rules, 1974."

        It is not in dispute that on the basis of the aforesaid implementation
  of the provisions of the Act, in February 1995, fresh advertisement came
F to be made for appointment of two Readers in Chemistry. On a repre-
  sentation made by the respondents, the Chancellor, exercising the powers
  under Section 68 of the U.P. State Universities Act, 1973, by order dated
  June 6, 1995 gave directions to the Vice-Chancellor to appoint the respon-
  dents as Readers in the Chemistry Department. On receipt of the above                  ..
  direction, on June 15, 1995, the Vice-Chancellor by the letter to the
G Chancellor (Governor) on the same date sought guidance as to how in the
  face of the Act, the directions issued by him could be implemented. The
  Chancellor had referred the matter to the law department for opinion and
  the above communication was sent to the appellant on July 8, 1995. The
  respondent filed the writ petition on July 17, 1995 for a mandamus to
H implement the directions issued by the Chancellor dated June 6, 1995. The
   VICE CHANCELLOR, UNIVERSITY OF ALLAHABAD v. DR. A.P. MISHRA 179

respondent filed the counter-affidavit pleading the above facts. The Gover-      A
nor, exercising the powers under Section 6 of the Act, cancelled the
appointments made in respect of other persons, who came to be selected
and appointed in violation of the Act. It would appear that those affected
persons filed the writ petition in the High Court which are pending
disposal. We make it clear that we are not concerned with the above              B
cancellation in this appeal. Therefore, that controversy is kept at large.

      The only question is whether the Chancellor (Governor) is right in
directing the appellant to appoint the respondents to the post of Reader
in the Chemistry Department of the Allahabad University? It is already
seen that the Act has come into force with effect from December 11, 1993. C
Shri Sharan, learned counsel for the respondent, has contended that since
the process of selection starts by screening of the candidates eligible for
consideration by the Selection Committee, the process could be said to
have started prior to the coming into force of the Act and, therefore, all
the selections and appointments should be made in accordance with the
law applicable prior to the coming into force of the Act. We are unable D
to agree with the learned counsel. Legislative intention is clear from
Section 15(1) that the provisions of this Act shall not apply to cases in
which selection process has been initiated before the commencement of
the Act. Initiation of process of selection has been explained in the
Explanation thus :                                                          E
        "For the purpose of this sub-section the selection process shall be
        deemed to have been initiated where, under the relevant service
        rules, recruitment is to be made on the basis of -

        (i) written test or interview only, the written test or the interview,   F
        as the case may be has started."

      It is not in dispute that in this case, the process of selection to the
post of Reader involves only interview. The object seems to be to assess
the merit of the candidates though an interview which was started on and
from December 12, 1993. Thereby, the process of selection was initiated          G
after the Act had come into force without applying the provisions of
sub-section (1) of Section 3 of the Act. Therefore, the process of selection
and preparation of merit list was in violation of the provisions of the Act.
The Governor while acting as Chancellor, discharged statutory duty under
Section 68 of University Act in his ex-officio capacity. When he acts under      H
    180                   SUPREME COURT REPORTS[1996] SUPP.10 S.C.R.

A the Act, he exercises his· constitutional function under Article 163 with the
    aid and advice of the Council of Ministers. In the latter capacity, the order
    of the .Chancellor issued under Section 68 was cancelled as it was in
    violation of the Act.

          InShankarsan Dash v. Union of India, [1991] 2 SCR 567, on the basis
B of combined examination conducted by the Union Public Service Commis-
  sion for appointment to civil services, the appellant's name was kept in the
  select list for appointment to Group 'B' Police Service. The vacancies arose
  for subsequent year and though he wa~ occupying higher rank in the
  general category, the Government did not appoint him. They implemented
c the policy, appointing candidates in the lower rank belonging to reserved
  categories and the vacancies which arose for general candidates were not
  filled up. He filed an application in the Tribunal for direction to appoint
  him to the post. The Constitution Bench held that even if vacancies are
  notified for appointment and adequate number of candidates are found fit,
D the successful candidates do not acquire any indefeasible right to be
  appointed. On appeal, it was held that the notification inviting applications
  for requirement is merely an invitation to qualified candidates to apply for
  recruitment. On their selection, they do not acquire any vested right to the
  post unless the relevant recruitment rules so indicates; the State is under
  no legal duty to fill up all or any of the vacancies. However, the State has
E
  to act fairly. The decision not to fill up the vacancies has to be taken bona
  fide for valid and cogent reasons. The State is hound to respect the
   comparative merit of the candidates reflected in the relevant test and no
   discrimination is permitted in that behalf. However, mere selection does
   not create any right to appointment. It was held that the appellant therein
F had not acquired any right to be appointed against the vacancies arising
   later on the basis of any rules. Therefore, it was held that he was not
   entitled to be appointed. This Court also held that there was not arbitrari-
   ness whatsoever on the part of the State in not filing up the vacancies. The
                                                                                    '·'
   process of fine selection was held to have been properly undertaken as it
G was decided not to fill up any vacancy arising subsequently. The ratio
   therein applies to the facts in this case on all fours. In State of Andhra
   Pradesh v. T. Ramakrishna Rao & Ors., [1972] 4 SCC 830, the Constitution
   Bench had held that an applicant seeking appointment does not acquire
   any right, by merely applying for the post either under the rule or other-
H wise, on being selected for the post. Therein, the facts were that Rule 5 of
        VICE CHANCELLOR, UNIVERSITY OF ALLAHABAD v. DR. A.P. MISHRA       181

      the AP. Subordinate Service Rules made under Articles 234 and 237 read A
     with proviso to Article 309 of the Constitution was declared ultra vires.
     After making amendment to the said Rules, recruitment was made. The
     applicants/respondents who had applied earlier, challenged the subsequent
     recruitment. The Public Service Commission intended to make recruitment
     to the existing vacancies under the amended rules, while setting aside the B
     earlier notification, on the basis of the written as well as oral test. This
     Court held that common examination for all the vacancies woul4 not violate
     Article 16 of the Constitution. In that behalf, the above ratio came to be
     laid. In State of Haryana v. Subash Chander Marwaha & Ors., [1974] 1 SCR
     165, the facts· were that under the Punjab Civil Service (Judicial Branch) C
     Rules, recruitment was made to the posts of Subordinate Judges. Rules
     prescribed 45% as the qualifying marks in aggregate. A list under Rule 10
     was prepared of the candidates who secured 45% or more marks in
     aggregate. After the list was published in the Gazette, the Government was
     bound to make the selection of the candidate strictly in the order given in
     the lists, and intimate the selection to the High Court. When vacancies D
     were to be filled up, the High Court was to send in the names in accord-
     ance with, and in the order given in the list for appointment. The appellant
     selected the first seven who had secured more than 55% marks and above
     in the first llistance. The respondents who secured less than 55% marks
     and ranked 8, 9 and 13 in the list filed a writ petition on the ground that E
     15 vacancies were existing and that they were entitled to be appointed as
     per the list prepared .by the Public Service Commission. Though that
     contention found favour with the High Court, this Court had held that a
     mandamus could be issued only to compel an authority to do legal duty
     under a statute and the aggrieved party must have a legal right under the p
     statute to enforce its performance. Mere inclusion of his name in the list
     does not given any right to a candidate to be appointed to the post of
     subordinate judge. The mere existence of the vacancy does not give a legal
..   right to a candidate for appointment. It is open to the Government to
     decide as to how many posts appointment shall be made. The mere fact G
     that a candidate's name appears in the list will not entitle him to mandamus
     that he be appointed. The appeal was accordingly allowed. The ratio
     therein was approved by this Court in Shankarsan Dash's case. In Union
     Territory of Chandigarh v. Di/bagh Singh & Ors., [i993] 1 SCC 154, a Bench
     of three Judges, following Shankarsan Dash's, case had held that the
                                                                                H
     182                    SUPREME COURT REPORTS[1996] SUPP.10 S.C.R.

 A selectee in the list is not entitled to appointment. Mere inclusion in the list
    will not confer on him any indefeasible right to be appointed, in the
     absence of any rule to that effect. In that case, the selection was found to
    be not according to rules. The Government had cancelled the select list.
     When it was questioned, it was held by this Court that the cancellation of
  B the list was bona fide and for valid reason and was not arbitrary. In Nagar
    Mahapalika, Kanpur v. Vinod Kumar Srivastava & Ors., AIR (1937) SC 847,
     the Government issued a memo superseding all the circulars and cancelling
     the select list made for appointment. The High Court issued mandamus
     directing that the previous list would first be exhausted and until then no
  C fresh recruitment would be made. This Court by a Bench of two Judges
     reversed the mandamus and held that the list which was currently in force
     for one year would be valid and all the lists made earlier were not intended
     to be revived under the circular. Accordingly, the appeal was allowed and
     the order was set acide. The mandamus issued by the High Court was
     reversed and the list for the current year, viz., 1978 was sustained. In N.T.
  D Bevin Katti v. Kamataka Public Service Commission & Ors., AIR (1990) SC
     1233, the Public Service Commission notified on May 23, 1975, inviting
     applications from in-service candidates for recruitment to 50 posts of
     Tehsildars. Para 3 of the notification specified details of the posts reserved
,    for candidates belonging to Scheduled Castes and Scheduled Tribes and
  E other Backward Classes including posts set apart for Ex-Military person-
     nel. In case of non-availability of sufficient number of candidates for
     reserved categories, vacancies were to be filed up as per rules in force.
     Subsequently, notification was issued amending the pre-existing Rules,
      1966. Para 11 of the amended notificc:.tion provided that in the matter of
      reservation already made in the case of posts and services for which
  F advertisement had been issued prior to the coming into force of the
      Government Order dated July 9, 1975 the Government's directions would
      be applicable. The Government had not accepted the recommendation
      made by the Public Service Commission and directed them to prepare a
    . fresh merit list taking into consideration all the amended rules giving
  G reservation to the candidates. Accordingly, the list was prepared which
      came to be challenged. This Court had held that the Government order
      showed that the reservation already made for any category of post or
      service in respect of which advertisement had already been published
      before the issue of the Government order dated 9.7.1975, could be deemed
  H to have been validily made. It clearly indicated that the selection made in
     VICE CHANCELLOR, UNIVERSITY OF ALLAHABAD v.. DR AP. MISHRA 183

   accordance with the previous rules was valid and the merit list prepared A
  in· accordance with the rules was legal and valid one. The State Govern-
  ment wrongly refused to approve the same and curtailed the scope of it.
  This case is an authority o.n the proposition that recruitment should be
  made in accordance with the rules as indicated in the Amended rules.
  Accordingly, the appeal was allowed and the order of the Government set B
  aside. In Babita Prasad & Ors. v. v. State of Bihar & Ors., (1993] Supp. 3
  SCC 268, this Court had held that the panel was of indefinite life; inclusion
  of the candidate in such a panel does not create any indefeasible right when
  the Government has discontinued the select list for valid reason. It was
  held in paragraph 25 that "the purpose of the panel prepared in the instant
  case was only to finalise a list of eligible candidates for appointment". The C
  panel was too long and was intended to last indefinitely barring the future
  generations for decades from being considered in the vacancies arising
  much later. In fact, the future generations would have been kept out for a
- very long period had the panel been permitted to remain effective till
  exhausted. "A Panel of the type prepared in the present case cannot be D
  equated with a panel which is prepared having co-relation to the existing
  vacancies for anticipated vacancies arising in the near future and for a fixed
  time and prepared as a result of some selection process."

        It is, thus, settled law that the process of selection must be in
 accordance with the law existing as on the date of selection. Keeping E
 candidate in the waiting list does not confer any vested right in right in hiG
 favour much less indefeasible right. The appropriate appointing authority
 is not obliged to fill up the vacancies or to appoint any candidate/can-
 didates waiting in the list to any resultant vacancy, due to the operation of
 law under the Act. The Vice Chancellor, therefore, was obliged under the F
 Act and vested with duty and right in taking action to have the vacancies
 notified applying Section 3(1) of the Act for recruitment in accordance
 with law.

       It is contended that the retrospective operation cannot be given to G
 the vacancies existing prior to the coming into force of the Act. We are
 unable to agree with the learned counsel. It is settled legal position that
 Legislature is competent to make law with retrospective effect. The Act
 was applied to existing vacancies as on the date the Act came into force
 and process of selection was not Gtarted as on the date. There is no vested
 right to a vacancy in a post. A person has right only to be considered H
    184                   SUPREME COURT REPORTS[1996] SUPP. 10 S.C.R.

A according to rules in force as on the date of consideration. The process of ·
    selection having started prior to that date is required to be dealt with as
    per pre-existing law. The selection, after the coming into force of the Act
    has to be made by applying Selection 3(1). In the'fact of Section 3 read
    with Section 15(1) of the Act, any selection process initiated after the
B   commencement of the Act has to be in conformity with the provisions of
    the Act. Necessarily, the vacancies existing as on that date shall be required
    to be filled up by applying sub-section (1) of Section 5 of the Act and the
    selection should be made in accordance therewith. Any selection made in
    contravention thereof would be in violation of the provision of Section 3(1)
    of the Act. As a result thereof, the direction issued by the Chancellor to
C   make appointment of the respondents, though under the provisions of
    Section 68 of the Universities Act, is in violation of the Act since Section
    3(1) has been made applicable with retrospective effect from December
    11, 1993. The direction issued by the Chancellor in that behalf is in
    contravention of Section 3(1) of the Act.
D          It is settled legal position that the mandamus cannot be issued to
    violate the law or to act in violation of the law. In this case, the direction
    issued by the High Court tentamounts to a direction to the appellant to
    appoint the respondents as per the order issued by the Chancellor, in
    violation ·of the Act. The mandamus was, therefore, clearly illegal. The         ,;r

E   incumbent Vice-Chancellor cannot be found fault a regards implementa-
    tion of the Act as per directions contained in it and the comments and the
    strictures made against the appellants by the High Court are unwarranted
    and uncalled for.

          The appeals are allowed and the High Court's judgment and orders
F stands set aside but, in the circumstances, without costs. The writ petition
    is, consequently, dismissed. No costs.

    T.N.A.                                                      Appeals allowed.