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Civil · Reportable judgment

Dinesh Kumar Kashyap & Ors. etc. vs South East Central Railway & Ors. etc.

Court
Supreme Court of India
Date
27 November 2018
Case No.
Civil Appeal Nos. 11360-11363 of 2018
Result
Disposed
Bench
Kurian Joseph, Deepak Gupta, Hemant Gupta
Citation
[2018] 14 S.C.R. 947 : 2018 INSC 1103
Supreme Court Reports [2018] 14 S.C.R. 947 : 2018 INSC 1103
Headnote

Service Law – Appointment – Respondent No.1-Railways issued advertisement inviting applications for filling up Group-D posts for General Category in its Raipur, Bilaspur and Nagpur divisions and workshops – According to the appellants, as per the existing instructions dated 02.07.2008 the select list was to be prepared with 20% extra candidates in the replacement list – Appellants fall in the category of extra 20% – Claim of the appellants before CAT that the Respondent No.1 be directed to fill in the unfilled vacancies in the General Category from this list of 20% candidates – Rejected – Writ petition filed by the appellants, also rejected – Held: Per Deepak Gupta, J. (for himself and Kurian Joseph, J.) It is true, that mere selection does not give any vested right to the selected candidate to be appointed – However, at the same time when a large number of posts are lying vacant and selection process has been followed, then the employer must satisfy the court as to why it did not resort to and appoint the selected candidates, even if they are from the replacement panel – When the employer is the State it is bound to act according to Art.14 – There is no indication in the pleadings that the vacancies were not to be filled up – Respondent No.1 failed to give any cogent reason to justify its action of not calling for candidates from the replacement list of extra 20% candidates – Respondent No.1 to offer appointment to the eligible appellants – Directions issued – [Per Hemant Gupta, J. (Dissenting)] State has a right not to appoint candidates even if they are in merit list – Appellants do not possess indefeasible right of appointment – It is not the case, that any candidate lower in merit has been appointed or the appointments have been made by pick and choose method ignoring merit – Stand of Railways that the requirement to fill up 624 vacant posts was not felt cannot be said to be arbitrary – No reason to interfere in the decision-making process of the Railways – Constitution of India – Art.14.

Disposing of the appeals, the Court

HELD: Per Deepak Gupta, J. (for himself and

Kurian Joseph, J.)

Read the full headnote (14 more paragraphs)

1.1 It is true, that mere selection does not give any vested right to the selected candidate to be appointed. At the same time when a large number of posts are lying vacant and selection process has been followed then the employer must satisfy the court as to why it did not resort to and appoint the selected candidates, even if they are from the replacement panel. The State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. [Paras 6, 7][953-B-C; 954-C-D]

1.2 There is no indication in the pleadings that the vacancies were not to be filled up. The fact that three simultaneous selection processes were undertaken, itself proves that the Respondent No. 1 wanted to fill up all the posts and did not want any vacancies to be left unfilled. This negates the plea of the Respondent No. 1 that it was not necessary to fill up the vacant posts. The appellants herein who approached the CAT and the High Court with promptitude cannot suffer only because the matter was pending in Court. The judgment of the High Court and CAT, Jabalpur Bench are set aside. Directions issued. The Respondent No. 1 to offer appointment to the eligible appellants. [Paras 8, 10, 11, 14 and 15][954-F-G; 955-A-C; 955-F-G; 956-B-C]

R.S. Mittal v. Union of India (UOI) 1995 (2) Suppl. SCC

230 : [1995] 2 SCR 1127 – relied on.

Per Hemant Gupta, J. (Dissenting)

1.1 In the present case, the appellants were called in for the verification of documents as extra candidates to replace the candidates selected who do not join for one or the other reason. Such candidates were called to meet out the necessity to fill up of posts if the meritorious selected candidates do not join. The State has a right not to appoint candidates even if they are in merit list. The appellants do not possess indefeasible right of appointment. The reason given by the Railways in the counter affidavit is that the requirement to fill 624 posts was not felt in pursuance of an advertisement in question as there was two simultaneous selection processes in which 2839 candidates were appointed. Such reason cannot be said to be wholly arbitrary which warrant a mandate to the respondents to appoint the appellants who are not in merit list but at best in the waiting list. The State has right not to fill up any vacancy advertised. The stand that the requirement to fill up

624 vacant posts was not felt cannot be said to be arbitrary warranting a mandamus to appoint the appellants. The State cannot be directed to appoint candidates, when it does not require the posts to be filled up. The decision not to fill up vacancies has been taken for appropriate reasons and is neither arbitrary nor discriminatory. [Para 18][965-E-H; 966-A-B]

1.2 In exercise of power of Judicial Review, this Court is not to substitute the decision of the Railways and to direct candidates in the waiting list to be appointed. The currency of the panel published in the month of March, 2014 is for a period of two years. Since the validity of the select panel had come to an end on the efflux of time, therefore, there cannot be any order to appoint the persons from such select list prepared wayback in the year 2014 in pursuance to the advertisement issued on 15.12.2010. Such panel cannot be a perennial source of appointment. There is no reason to interfere in the decision-making process of the Railways, so as not to appoint the appellants against Group D posts advertised on 15.12.2010. Consequently, there is no illegality in the order passed by the Tribunal and the High Court. [Paras 20, 2224][968-B; 969-A-C]

Shankarsan Dash v. Union of India (1991) 3 SCC

47 : [1991] 2 SCR 567 – followed.

State of Haryana v. Subash Chander Marwaha (1974)

3 SCC 220 : [1974] 1 SCR 165 ; Jatinder Kumar v. State of Punjab (1985) 1 SCC 122 : [1985] 1 SCR

899 ; S.S. Balu v. State of Kerala (2009) 2 SCC 479 : [2009] 1 SCR 196 ; Kulwinder Pal Singh v. State of Punjab (2016) 6 SCC 532 : [2016] 4 SCR 439 – relied on.

R.S. Mittal v. Union of India 1995 Supp (2) SCC 230 : [1995] 2 SCR 1127 ; Union of India v. Kali Dass Batish (2006) 1 SCC 779 : [2006] 1 SCR 261 – referred to.

As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.

Full Judgment Text

The Judgments* of the Court were delivered by DEEPAK GUPTA, J. 1. Leave granted. 2. Respondent No.1, South East Central Railway (for short the SECR) issued an advertisement on 15.12.2010 inviting applications for filling up 5798 posts in the pay scale of Rs.5200-Rs. 20,200 + Grade Pay of Rs.1800/- in Raipur, Bilaspur and Nagpur divisions and workshops. The claim of the original writ petitioners who filed applications before the Central Administrative Tribunal (for short CAT) was that as per the existing instructions the select list was prepared with 20% extra candidates. Therefore, the resul
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