Supreme Court of IndiaState Of M.P. & Ors vs Sanjay Kumar Pathak & Ors on 10 October, 2007Author:S.B. SinhaBench:S.B. Sinha,H.S. BediCASE NO.:
Appeal (civil)  1062 of 2005

PETITIONER:
State of M.P. & Ors

RESPONDENT:
Sanjay Kumar Pathak & Ors

DATE OF JUDGMENT: 10/10/2007

BENCH:
S.B. Sinha & H.S. Bedi

JUDGMENT:J U D G M E N T 
W I T H


CIVIL APPEAL NOS. 1063 to 1077 OF 2005
CIVIL APPEAL NO. 5737 OF 2005 and
CIVIL APPEAL NO.4754 OF 2007
[Arising out of SLP (C) NO. 9265 OF 2004]

S.B. SINHA, J :1. 	Leave granted in SLP.2.	The Government of India sponsored a project commonly known as 
Operation Black Board during the Eighth Plan period, i.e. 1992-1997 in 
terms whereof financial clearance was to be given for appointment of 
Additional Teachers in all primary / middle schools which had only one 
teacher in order to improve the standard of education.  With a view to 
implement the said project, the State intended to appoint 7000 to 11000 
teachers.3. 	Indisputably, the matter relating to recruitment of Assistant Teachers 
in Madhya Pradesh is governed by Madhya Pradesh Non-Gazetted Class III 
Education Service (Non-Collegiate Service) Recruitment and Promotion 
Rules, 1973 (hereinafter called and referred to for the sake of brevity as 
said Rules).  In terms of the said Rules, the method of recruitment was to 
be by holding competitive examination followed by interview.  With a view 
to expedite implementation of the project having regard to the fact that the 
same was to be implemented within the Eighth Plan period, Rule 10(3) of 
the Recruitment Rules was amended on or about 10.05.1993 by adding a 
proviso thereto which reads, thus:Provided that in any specific circumstance of the 
State Government may, in consultation with the 
General Administrative Department prescribe the 
criteria and procedure for selection of candidates.4. 	For the aforementioned purpose, Selection Committees were 
constituted for recruitment of Assistant Teachers in each and every district.Selections were to be made district-wise by inviting applications from the 
Employment Exchanges.  The Selection Committee was to prepare a panel 
upon considering the eligibility criteria of the candidates concerned as also 
upon taking viva voce list.5. 	Recruitment process was started in the State on or about 5.08.1993.  
Selection process was to be started from 13.08.1993 and was to be 
completed within a period of about one month, viz., 13.08.1993 to 
15.09.1993.  Appointments were to be made in phases.In these appeals, we are concerned with recruitment of 64 Assistant 
Teachers in Phase 3 and 66 Assistant Teachers in Phase 4.As per the recruitment process, interviews were held in Damoh 
District for selection of Assistant Teachers from 1.09.1993 to 9.09.1993. 
Questioning, however, the validity of the amendment to Rule 10(3) of the 
Recruitment Rules, one Zila Mansevi Shikshak Sangh filed an original 
application before the Administrative Tribunal.  The said application was 
marked as Application No. 2395 of 1993.  An interim order was passed 
therein directing that no appointment should be made to the persons selected 
for the appointment as Assistant Teachers in terms of the said Scheme.  
When the Select List for Assistant Teachers for Damoh District was underpreparation, a telephonic information was received by the appropriate 
authority as regards the interim order passed by the Tribunal.  Further 
selection process was directed to be stayed pursuant thereto.  No Select List, 
therefore, was prepared by the District Selection Committee.  No tabulation 
was done in respect of the interviews of the candidates and in absence of 
preparation of tabulation, the Select List could not have been and was not 
prepared.By an order dated 18.03.1994 the State Administrative Tribunal 
declared the said amendment to be illegal being violative of Articles 14 and16 of the Constitution of India.  Aggrieved thereby, the State Government 
and other aggrieved candidates filed Special Leave Petitions before this 
Court and by an order dated 04.01.1995, this Court stayed the said order of 
the Tribunal.  It is not in dispute that on 24.04.1995 the State Government 
issued offers of appointments in favour of the candidates who had been 
selected in the year 1993 except those who had appeared in the interview 
before the Selection Committee of the Damoh District.  By an order dated 
1.12.1997 this Court inArun Tewari v. Zila Mansevi Shikshak Sangh[(1998) 2 SCC 332], upheld the selection process.6. 	39 Assistant Teachers filed an original application before the Tribunal 
for a direction upon the State to issue appointment letters to the selected 
candidates.  Before the Tribunal, Appellant  State specifically raised the  
plea that the matter relating to recruitment of Assistant Teachers has since 
been entrusted to Janpad Panchayats under the Madhya Pradesh Panchayat 
Raj Adhiniyam, in the existing vacancies of the Assistant Teachers which 
were since then known as Samvida Shala Shikshak Varg  III and Shiksha 
Karmi Varg  III, and teachers were appointed by the Janpad Panchayats in 
December, 1995.  The said application was allowed by an order dated 
19.05.1999 stating:In view of the above discussion it is directed that 
the aborted process of selection in Damoh District 
be now completed and the select list be drawn out 
as per the laid down procedure and those placed on 
the select list be offered appointment after 
following the usual formalities for appointments 
under the Government.  The entire exercise of 
drawing out the select list and issue of appointment 
orders shall be completed within two months of the 
date of this order.  Respondents No. 3 and 4 that is 
Collector and Deputy Director Education Damoh 
shall be personally responsible for complying with 
these directions.

 	The Chairman of the Tribunal, however, passed a separate order 
observing that the defence taken by the State that there was no vacancy for 
recruitment to the post of Assistant Teacher was not acceptable.  The 
Administrative Member of the Tribunal expressed his views separately.7. 	By reason of the impugned judgment, the High Court has dismissed 
the writ petition filed by the appellant.  It, however, did not go into the merit 
of the matter and based its decision on the purported peculiarity of the 
case.  It although took into consideration the legal question that even if a 
persons name appears in the Select List, ordinarily, no right accrues but 
proceeded to opine:10. After hearing the learned counsel for the 
parties, we think that the present cases have their 
own peculiarity.  It is well settled in law that if the 
name appears in the select list ordinarily no right 
accrues.  There may be cases which would depend 
on different facts and circumstances of the case.We do not intend to dilate on that score because of 
the pertaining factual matrix which are enumerated 
hereunder:(a)	The State Government had taken steps to 
appoint 11000 Assistant Teachers in the entire 
undivided Madhya Pradesh and appointments have 
been made in number of districts before the 
Tribunal granted stay.(b)	After the final order was passed by the 
Tribunal, the matter travelled to apex Court and, 
thereafter, their Lordships passed the order of stay.The State Government promptly filled up the posts 
in respect of other districts.(c)	The selection process in the districts of 
Damoh lingered and, therefore, the persons who 
were in the select list or on the third phase could 
not get the benefit.(d)	The persons who have rendered services for 
a brief period long back because of the direction 
given by the Tribunal to consider their cases, they 
have been appointed.


 	The High Court restricted the matter relating to grant of relief only to 
the case of the original applications directing:(a)	The State Government shall prepare a list of 
candidates who had approached the Tribunal in the 
original applications in the order of merit as per 
the select list.(b)	The State Government shall offer them 
appointments in respect of Assistant Teachers or 
equivalent posts within a reasonable period of 
time.(c)	The State shall start taking action within a 
period of three months from today so that bonafide 
of the State would be demonstrative.(d)	The candidates who have not approached the 
Tribunal could not be benefited by this order for 
the simple reason that he who is not vigilant loses 
his right.8. 	Ms. Vibha Datta Makhija, learned counsel appearing on behalf of the 
appellant, would submit that the High Court committed a manifest error in 
passing the impugned judgment insofar as it failed to take into consideration:(i)	the respondents did not have any legal right to be appointed:(ii)	there exists a distinction between two categories of candidates, viz., 
	those in whose favour letters of appointments had been issued but had 
	to be cancelled in view of the order of the Tribunal and the 
	respondents herein whose names did not figure in the Select List at 
	all.(iii)	writ petition should not have been allowed on equity alone as it must 
	flow from a legal right.9. 	Mr. Prakash Shrivastava, learned counsel appearing on behalf of the 
respondents, on the other hand, would submit that the Tribunal and 
consequently the High Court having passed the impugned judgments in the 
peculiar fact situation obtaining therein, the matter must be considered in the 
backdrop of the following facts:(i)	the Recruitment Rules had been struck down;(ii)	a stay was operating upto 4.01.1995.(iii)	the State had issued instructions directing appointment of all the 
	successful candidates as a result whereof the impugned judgment had 
	been passed.10. 	Respondents do not dispute before us that the tabulation of the marks 
obtained by them was not finalized.  For the purpose of selection, the marks 
allotted to each of the candidates should be known to the members of the 
Selection Committee.  Members of the Selection Committee before 
preparing the Select List were entitled to undergo a consultative process so 
as to enable them to arrive at a consensus in regard to the candidates who 
should be appointed.  As the tabulation process itself was not completed, the 
question of preparing any Select List also did not arise.11. 	It is true that after the order of stay was vacated by this Court inArun 
Tewari(supra), the State issued a circular letter dated 24.04.1995 which 
reads as under:On the above subject vide referred departmental 
memo, it is directed that of all those teachers 
whose services were terminated should be 
reinstated in compliance with the judgment of the 
Honble Court.  In connection with this as per 
reconsidered decision taken after obtaining opinion 
of the Advocate General appointment should be 
given to all such persons who have been selected 
legally under operation black board, in accordance 
with the rules and after compliance of all the 
formalities.  Remaining condition shall remain 
unchanged.12. 	Recruitment to the posts of Assistant Teacher is governed by statutory 
rules.  Rule 10 of the Rules was amended only for the purpose of 
implementation of the Scheme of the Central Government Operation Black 
Board.  It is trite law that while the recruitment process is governed by the 
Rules, the same should be scrupulously complied with.  The State, having 
regard to the ultimate decision rendered by this Court, was bound to reinstate 
those whose services had been terminated and appoint those who had been 
selected legally.  The condition of selection was to remain unchanged.  One 
of the conditions for recruitment was, therefore, selection of the candidates.13. 	The Tribunal as also the High Court did not call for the documents 
pertaining to the selection process.  No finding of fact has been arrived at 
that the respondents herein were bound to be selected and consequently 
appointed.  Whether all of them had fared better than the other candidates 
who had not approached the Tribunal had not been found.  As the selection 
process itself was not complete, there was nothing before the Tribunal as 
also the High Court to indicate that they had acquired legal right of any kind 
whatsoever.  Even where, it is trite, the names of the persons appeared in the 
selection list, the same by itself would not give rise to a legal right unless the 
action on the part of the State is found to be unfair, unreasonable or mala 
fide.  The State, thus, subject to acting bona fide as also complying with the 
principleslaid down inArticles 14and16of the Constitution of India, is 
entitled to take a decision not to employ any selected even from amongst the 
Select List.  Furthermore, we have noticed hereinbefore, that selections were 
made in 4 phases.  It is not the contention of the respondents that the State 
Government acted malafide.  The dispute, as noticed hereinbefore related to 
appointment in Phase 3 and Phase 4 only.14. 	If the action of the State was not bonafide and/ or otherwise unfair, in 
our opinion, the Tribunal and consequently the High Court could exercise 
their jurisdiction to issue a writ of or in the nature of Mandamus, as has been 
sought to be done, but neither any such plea was raised nor the same was 
otherwise found to be existing.15.	It is well-known 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 Another v. State of Jammu and Kashmir and 
Others(1993) 2 SCC 577]16.InK. Jayamohan v. State of Kerala and Another[(1997) 5 SCC 170], 
this court held:5. It is settled legal position that merely because a 
candidate is selected and kept in the waiting list, he 
does not acquire any absolute right for 
appointment. It is open to the Government to make 
the 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 settled legal 
position, no error is found in the judgment of the 
High Court warranting interference.
	[See alsoMunna Roy v. Union of India and Others, (2000) 9 SCC 
283]17.InAll India SC & ST Employees Association and Another v. A. 
Arthur Jeen and Others[(2001) 6 SCC 380], it was opined:10. 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 vacancies aslaid 
down bythe Constitution Bench of this Court, 
after referring to earlier cases inShankarsan Dash 
Vs. Union of India. Para 7 ofthe said judgmentreads thus :-"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 notification merely amounts 
to an invitation to qualified candidates to apply for 
recruitment and on their selection they do not 
acquire any right to 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 
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 inState of Haryana vs. Subhash 
Chander Marwaha,Neelima Shangla vs. State of 
Haryanaor Jatendra Kumar vs. State of Punjab."18. 	The principles laid down in the aforementioned cases have been 
upheld by this Court inFood Corporation of India and Others v. Bhanu Lodh 
and Others[(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 must pass the test of 
reasonableness so as not to fail on the touchstone 
ofArticle 14of 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 review19.InPitta Naveen Kumar and Others v. Raja Narasaiah Zangiti and 
Others(2006) 10 SCC 261], this Court observed :The legal position obtaining in this behalf is not 
in dispute.  A candidate does not have any legal right to 
be appointed.  He in terms ofArticle 16of 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 concerned and not 
otherwise  

 	In a situation of this nature, no appointment could be made by the 
State in absence of the Select List.  The State could not substitute itself for 
the Selection Committee.20. 	Furthermore, ordinarily, the writ court should not, in absence of any 
legal right, act on the basis of sympathy alone.InRamakrishna Kamat and Others v. State of Karnataka and Others[(2003) 3 SCC 374] albeit in the light of right of regularization in service, 
this Court opined:It is clear from the order of the learned single 
Judge and looking to the very directions given a 
very sympathetic view was taken. We do not find 
it either just or proper to show any further 
sympathy in the given facts and circumstances of 
the case. While being sympathetic to the persons 
who come before the court the courts cannot at the 
same time be unsympathetic to the large number of 
eligible persons waiting for a long time in a long 
(SIC) seeking employment

	[See alsoMaruti Udyod Ltd.  v. Ram Lal and Others, (2005) 2 SCC 
638, State of Bihar & Ors. v. Amrendra Kumar Mishra, 2006 (9) SCALE 
549, Regional Manager, SBI v. Mahatma Mishra, 2006 (11) SCALE 258 and 
State of Karnataka v. Ameerbi & Ors.2006 (13) SCALE 319]21.	For the reasons aforementioned, the impugned judgment cannot be 
sustained which is set aside accordingly.  However, keeping in view the 
peculiar facts and circumstances of the case, we direct that the respondents 
shall be entitled to relaxation of age in the event they intend to take part in 
the next selection process.  The State is also directed to pay a sum of Rs. 
10,000/- each to the respondents concerned.  The appeals are allowed.  No 
costs.