Service Law — Recruitment — Wait List/Reserved Panel — Right of Waitlisted Candidate — Nature and Duration of Validity —
Held, a candidate merely placed in a “Reserved Panel” or “Wait List” has no vested right to appointment once all the selected candidates have joined their posts.
The right to be considered arises only in the contingency that a selected candidate does not join the post. The wait list cannot remain operative indefinitely, and once a fresh recruitment is initiated, the earlier panel stands exhausted.
— Gujarat State Dy. Executive Engineers’ Assn. v. State of Gujarat, (1994) 2 SCC 715, followed.
(Para 12)
Service Law — Appointment — Concession/Statement Made by Counsel Before Tribunal — Binding Effect — When Not Binding —
Held, a wrong concession or assurance made by counsel on a question of law, if contrary to statutory recruitment rules, is not binding upon the department or its client.
Such concession cannot override statutory provisions or be enforced in derogation of recruitment rules.
Court may permit the party to resile from such concession where its implementation would result in illegality.
— Uptron India Ltd. v. Shammi Bhan, (1998) 6 SCC 538 and Central Council for Research in Ayurveda & Siddha v. K. Santhakumari, (2001) 5 SCC 60, applied.
(Paras 15–16)
Recruitment Rules — Violation of Statutory Procedure —
Direction by High Court to absorb a waitlisted candidate (whose name was at Serial No.1 in the 1997 reserved panel) on the basis of an assurance given before the Tribunal in 1999, held unsustainable.
Giving effect to such assurance would result in breach of recruitment rules, perpetuation of an expired panel, and deprivation of future eligible candidates of consideration in subsequent recruitments.
(Paras 13–17)
Practice and Procedure — Judicial Orders Based on Concession —
While a party is ordinarily bound by its solemn statement before a Court or Tribunal, compliance cannot be compelled if giving effect to the statement would result in violation of law or statutory rules.
(Para 17)
Held:
-
The respondent was placed at Serial No. 1 in the Reserved Panel of SC candidates for the 1997 recruitment to the post of Technician in All India Radio, Eastern Zone.
-
All three selected candidates had joined; hence the wait list never operated.
-
The only basis of the respondent’s claim was the statement made by counsel for the Union before the CAT on 15.01.1999, that he would be “absorbed against the next vacancy in SC quota.”
-
Such statement could not override statutory recruitment rules or confer a perpetual right of consideration.
-
Tribunal and High Court earlier held that the respondent had no vested right and that the selection process was valid.
-
The High Court, in directing absorption in 2024, failed to consider that the 1997 wait list had long expired and that giving effect to the 1999 statement would illegally extend the life of a defunct panel.
Hence, Supreme Court held that the High Court’s judgment was unsustainable in law, set aside the direction to absorb the respondent, and allowed the appeal.
Result:
Appeal allowed.
Impugned judgment of the Calcutta High Court dated 25.06.2024 in WPCT No.24 of 2021 — set aside.
Respondent’s writ petition — dismissed.
No order as to costs.
2025 INSC 1235
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 1 of 22
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO……………OF 2025
(Arising out of Special Leave Petition (Civil) No………. of 2025)
(@ Diary No.57192 of 2024)
THE UNION OF INDIA & ORS. APPELLANTS
VERSUS
SUBIT KUMAR DAS RESPONDENT
J U D G M E N T
ATUL S. CHANDURKAR, J.
1. Delay condoned.
2. Leave granted.
3. The Union of India through the Secretary, Ministry of
Information and Broadcasting and the All India Radio through its
Director General are aggrieved by the direction issued by the
Division Bench of the Calcutta High Court requiring them to
absorb the services of the respondent on the post of Technician
at the Eastern Zone of All India Radio under the Scheduled
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 2 of 22
Castes (SC) category. According to the appellants, such direction
to absorb the services of the respondent enlarges the right of a
candidate placed in the Reserved Panel much after its expiry and
runs counter to the Recruitment Rules. The respondent supports
the said direction by contending that the appellants had
committed to absorb the respondent in service as far back as on
15.01.1999 and the High Court rightly directed so.
4. Facts relevant for considering the challenge as raised to the
aforesaid direction are that pursuant to a requisition made by the
All India Radio, Eastern Zone for making appointment on the post
of Technician, names of various candidates maintained by the
Employment Exchange came to be forwarded. Three posts of
Technician were reserved for candidates belonging to the SC
category. The Selection Committee interviewed eleven
candidates and finally selected three candidates in the order of
merit against the existing vacancies. The name of the respondent
was placed at Serial No.1 in the Reserved Panel. It was stated
that the candidates placed in the Reserved Panel would be
appointed only in case any of the three selected candidates did
not join the said post for any reason. The respondent being
aggrieved by the decision of the Selection Committee
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 3 of 22
approached the Central Administrative Tribunal (for short, “the
Tribunal”) by filing Original Application No.989 of 1997
challenging its decision and seeking his appointment on the post
of Technician. On 25.08.1997, the Tribunal passed an interim
order and directed that any appointment made of the selected
candidates would abide by the result of the Original Application.
In the said proceedings, the respondent moved an interim
application praying that no further appointment be made on the
post of Technician without considering his name pursuant to the
earlier recruitment process. During the course of the hearing of
the said application, a statement was made on behalf of the
appellants which was recorded in the order dated 15.01.1999 as
under:
“3. Mrs. Banerjee, Ld. Counsel for the respondents
submits that till the filling up of post of technician from the
reserved quota viz. 1 OBC and 1 ST is taken by the
respondent authorities, the applicant’s case would not be
considered. She further submits as soon as vacancy
would arise against the SC quota, the applicant would be
absorbed.”
On the basis of the said statement, no further orders were
passed on the interim application.
5. Original Application No.989 of 1997 came to be decided by
the Tribunal on 09.12.2004. The Tribunal recorded various
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 4 of 22
findings, inter alia, holding that there did not appear to be any
departure from the procedure and instructions that were required
to be followed while undertaking selection. It further held that the
allegation of bias as made by the respondent against the
members of the Selection Committee was without any basis. It
also referred to the clear stipulation in the records of the
Selection Committee that the right of the respondent to be
appointed was only if any of the selected candidates did not join
the post on which they were appointed. It also held that a
candidate in the wait list had no vested right to be appointed
except when the selected candidate did not join the post and the
wait list was operative. All grounds of challenge raised by the
respondent on merits were turned down. However, in view of the
statement made on behalf of the appellants as recorded on
15.01.1999 that the case of the respondent would not be
considered till the reserved quota of candidates from the Other
Backward Classes (OBC) category and Scheduled Tribes (ST)
category were filled in, the appellants were directed to consider
the case of the respondent in terms of the assurance given to the
Tribunal and take steps to absorb him against the available
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 5 of 22
vacancy in accordance with law within a period of three months
from the date of communication of the order.
6. The appellants being aggrieved by the aforesaid directions
issued by the Tribunal approached the High Court by filing WPCT
No.276 of 2005. The Division Bench of the High Court by its order
dated 23.02.2009 found that the various findings recorded by the
Tribunal against the respondent as regards the right of a
waitlisted candidate as well as the manner of conduct of the
selection proceedings by the Selection Committee had not been
challenged by him. It, however, observed that the direction to
consider the case of the respondent came to be made in view of
the concession recorded in the order dated 15.01.1999. The High
Court, without interfering with the said direction issued by the
Tribunal, modified the said order to the extent that the outer limit
of consideration of six months was not to be applicable, in case
no vacancy arose within that period.
7. In the meanwhile, on 23.02.2013, a fresh notice of
recruitment for various posts including that of Technician came to
be published at the instance of Prasar Bharti. The respondent
again approached the Tribunal by filing Original Application
No.739 of 2013 seeking a direction that he be absorbed on the
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 6 of 22
post of Technician in the SC category as per the advertisement
dated 23.02.2013. By an interim order dated 19.07.2013, the
appellants were directed to keep one post of Technician vacant
under the SC category in the East Zone till the next date of the
proceedings. The aforesaid Original Application came to be
decided on 27.11.2015. While referring to the right of a waitlisted
candidate to seek appointment, the Tribunal noted that the
appellants in the year 1999 had stated that the case of the
respondent would be considered against any available vacancy
in the SC category. The Original Application was disposed of with
a direction to the appellants to act in accordance with the earlier
orders. An appropriate order in that regard was directed to be
passed within a period of three months.
The Deputy Director General (P) passed a speaking order
on 19.02.2016 stating therein that all the three vacancies that
were to be filled up in 1997 had been so filled up as per the select
list. The respondent was at Serial No.4 and he could not be
absorbed. The general assurance for absorption against future
available vacancies was subject to fulfilment of conditions of the
Recruitment Rules. In absence of any vacancy in the SC
category, absorption was not possible. It was also noted that the
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 7 of 22
respondent had crossed the maximum age limit prescribed under
the Recruitment Rules and there was no direction to absorb him
by relaxing the Recruitment Rules. It was, thus, stated that in
absence of any vacant post being available, the respondent
could not be absorbed against the vacancies notified in the
advertisement dated 23.02.2013, more so, as he was not eligible
for appointment as per the Recruitment Rules.
8. The respondent being aggrieved by the aforesaid speaking
order again approached the Tribunal by filing Original Application
No.436 of 2016. The Tribunal on 09.01.2020 observed that the
earlier Original Application No.739 of 2013 was decided on
27.11.2015. The documents placed on record, however,
indicated the vacancy position prior to that date. The Tribunal,
therefore, directed the appellants to issue a fresh speaking order
indicating the number of vacancies on the post of Technician that
occurred after its earlier order dated 27.11.2015 and also indicate
whether the respondent was entitled to be considered in
accordance with the directions of the Tribunal. The respondent,
being aggrieved by the said order, preferred WPCT No.24 of
2021 before the High Court. Besides challenging the order of the
Tribunal dated 09.01.2020, the respondent also sought a
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 8 of 22
direction for being appointed on the post of Technician. The High
Court passed interim orders on 21.06.2021 and 06.09.2021
directing that an affidavit to be filed indicating if any vacancy on
the post of Technician had arisen from 2009 onwards. The
Deputy Director General (P), All India Radio filed an affidavit
dated 09.09.2021 stating therein that there was no vacancy on
the post of Technician at the All India Radio, Calcutta since 2009
till date. The Division Bench thereafter on 25.06.2024 decided
the said writ petition. It was of the view that the appellants on
15.01.1999 had given an assurance before the Tribunal that the
respondent would be considered in the next available vacancy.
However, that statement was not honoured despite a vacancy
being available. It further held that the rejection of the
respondent’s claim on the ground that he was age barred was
illegal. The Division Bench accordingly set-aside the order dated
09.01.2020 passed by the Tribunal and directed the appellants to
absorb the respondent on the post of Technician in any vacancy
under the SC category in the Eastern Zone within a period of four
weeks. The respondent’s absorption was directed to be given
effect from 19.07.2013 onwards on a notional basis. Being
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 9 of 22
aggrieved by this decision, the appellants have come up in
appeal.
9. Ms. Madhusmita Bora, learned Advocate appearing for the
appellants submitted that the High Court committed an error in
directing the appellants to absorb the respondent on the post of
Technician. The vacancy in question was of the year 1997 and
admittedly the respondent was placed at Serial No.1 in the
Reserved Panel. He was entitled to be considered for
appointment only in the event any of the three selected
candidates failed to join the post of Technician. Since all the three
candidates had joined their posts, there was no occasion for the
respondent to claim any entitlement to be appointed by virtue of
his placement in the Reserved Panel. The respondent was
merely a waitlisted candidate and had no vested right to seek
appointment. The direction issued by the High Court, if
implemented, would result in a waitlisted candidate of the year
1997 being absorbed in service after more than twenty five years.
In that regard, the learned counsel referred to the decision in Sri
Sanjoy Bhattacharjee Vs. Union of India & Ors.1
It was then
submitted that the only basis for the High Court to have issued
1 1997 INSC 250
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 10 of 22
the impugned direction was the statement made on behalf of the
appellants on 15.01.1999 that the respondent would be
considered against any vacancy in the SC category in future. The
said statement amounted to a concession in law which was
contrary to the statutory Rules of Recruitment. The said
statement, therefore, would not bind the appellants as the
appellants would be required to disregard the Recruitment Rules
for absorbing the services of the respondent. It was permissible
for the appellants to place the correct position in law while not
proceeding in accordance with such statement. To substantiate
this contention, the learned counsel referred to the decisions in
Director of Elementary Education, Odisha Vs. Pramod
Kumar Sahoo2 and The Employees’ State Insurance
Corporation Vs. Union of India and others3
. It was, thus,
submitted that the impugned judgment of the High Court was
liable to be set aside and the respondent was not entitled to any
relief whatsoever.
10. On the other hand, Mr. Rakesh Kumar learned Advocate
appearing for the respondent supported the impugned direction
issued by the High Court. He submitted that it was not
2 2019 INSC 1092
3 2022 INSC 77
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 11 of 22
permissible for the appellants to disregard the statement made
on their behalf on 15.01.1999 before the Tribunal. As such
statement was made on behalf of the appellants, no further relief
was granted to the respondent by the Tribunal. Despite
availability of various vacancies since then, the appellants failed
to absorb the respondent on the post of Technician. It was also
not permissible for the appellants to now change their stand by
stating that the respondent had crossed the age limit for being
appointed. In that regard, the learned counsel placed reliance on
the decisions in Prem Prakash Vs. Union of India4
, H.P. ST
Employees Federation Vs. H.P.S.V.K.K.5 and Rameshwar
Prasad Goyal, Advocate, In Re6
. It was then submitted that the
High Court had rightly found that on 19.07.2013, the
respondent’s right was crystalized as a vacancy had arisen and
hence, the Tribunal had directed one post to be kept vacant. It
was not in dispute that vacancies in the SC category were
available and the respondent could not be deprived of the relief
of absorption. As a model employer, the Union of India ought to
honour its assurance and it could not take a stand contrary to the
4 1984 INSC 150
5
[2013] 10 SCC 308
6 2013 INSC 550
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 12 of 22
statement as made. Denying relief to the respondent would result
in the appellants taking advantage of their own wrong. The
learned counsel referred to the decision in Union of India and
others Vs. Hindustan Development Corporation and others7
in that regard. It was, thus, submitted that the High Court having
rightly found that as the respondent was being deprived of the
benefit of absorption, no interference with the directions issued
by it was called for. The appeal was, thus, liable to be dismissed.
11. We have heard the learned counsel for the parties at length
and with their assistance we have also perused the documents
on record. It is not in dispute between the parties that in the year
1997, three vacancies for the post of Technician from the SC
category were sought to be filled in. The respondent along with
ten other candidates came to be interviewed by the Selection
Committee. Three candidates were chosen and placed serially in
the order of merit. The respondent was placed at Serial No.1 in
the Reserved Panel by noting that if any of the three selected
candidates did not join the post of Technician, the candidates
placed in the Reserved Panel would be appointed. All the three
selected candidates did join the post of Technician as a result of
7 1993 INSC 154
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 13 of 22
which the respondent remained at Serial No.1 in the Reserved
Panel.
12. While considering the entitlement of the respondent to any
relief on the basis of his placement in the Reserved Panel, it
would be necessary to bear in mind the settled position that mere
placement in the wait list does not create any vested right for
being so appointed. The right to be considered for appointment
would spring only in the contingency of a selected candidate not
joining on his post. The wait list operates for a limited period. It
cannot extend for an indefinite period and in any event after a
fresh process of recruitment has commenced. This legal position
is well settled and reference can be made to the decision of a
three Judge Bench in Gujarat State Dy. Executive Engineers'
Association Vs. State of Gujarat and others8
. In paragraph 9,
it has been held as under:
“9. A waiting list prepared in an examination conducted
by the Commission does not furnish a source of
recruitment. It is operative only for the contingency that if
any of the selected candidates does not join then the
person from the waiting list may be pushed up and be
appointed in the vacancy so caused or if there is some
extreme exigency the Government may as a matter of
policy decision pick up persons in order of merit from the
waiting list. But the view taken by the High Court that
since the vacancies have not been worked out properly,
therefore, the candidates from the waiting list were liable
to be appointed does not appear to be sound. This
8 1994 INSC 199
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 14 of 22
practice, may result in depriving those candidates who
become eligible for competing for the vacancies
available in future. If the waiting list in one examination
was to operate as an infinite stock for appointments,
there is a danger that the State Government may resort
to the device of not holding an examination for years
together and pick up candidates from the waiting list as
and when required. The constitutional discipline requires
that this Court should not permit such improper exercise
of power which may result in creating a vested interest
and perpetrate waiting list for the candidates of one
examination at the cost of entire set of fresh candidates
either from the open or even from service.”
(emphasis supplied by us).
From the aforesaid, it is clear that any right that the
respondent could claim as a waitlisted candidate extinguished
when all the selected candidates joined on their respective posts.
13. The sole basis for the claim of the respondent of seeking
appointment/absorption on the post of Technician is the
statement made on behalf of the appellants as recorded in the
order dated 15.01.1999. As per the said statement, on a vacancy
arising against the SC quota, the respondent was to be
absorbed. According to the appellants, such statement cannot
bind them since its compliance would result in breach of the
Recruitment Rules. The respondent, however, relies upon the
said statement as it was given in all solemnity before the Tribunal.
For considering the binding nature of such statement made
before the Tribunal, certain factual aspects would have to be
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 15 of 22
borne in mind. Though the placement of the respondent was at
Serial No.1 in the Reserved Panel, all the selected candidates
had joined on the post of Technician and, thus, there was no
occasion to operate the wait list is an admitted position. No
vacancy from 1997 was carried forward and a vacancy, if any,
that was to arise in the future would have been a fresh vacancy.
The entitlement of the respondent, if any, was as a waitlisted
candidate qua the select list of 1997. There was no vested right
in favour of the respondent to urge that he was entitled to be
considered and appointed on any fresh vacancy arising in the
future. Secondly, the statement as recorded on 15.01.1999 would
have a limited operation to the extent that only if any of the
selected candidates for the post of Technician in the SC category
failed to join on the said post, the respondent could be appointed
on such vacant post being the candidate at Serial No.1 in the
Reserved Panel. The statement as recorded that the claim of the
respondent, a waitlisted candidate, would be considered as and
when any vacancy would arise against the SC quota cannot
operate in eternity contrary to the Recruitment Rules. Thirdly, it is
necessary to note that the respondent’s challenge to his
placement in the Reserved Panel and the selection of three other
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 16 of 22
candidates on merit was not disturbed either by the Tribunal or
by the High Court. This is clear on a perusal of the judgment of
the Tribunal dated 09.12.2004 in Original Application No.989 of
1997. The High Court in WPCT No.276 of 2005 decided on
23.02.2009 affirmed the findings of the Tribunal that a waitlisted
candidate did not have any legal right to claim appointment and
noted that the said finding recorded by the Tribunal was not under
challenge by the respondent. These material aspects would be
relevant while considering the legal effect of the statement
recorded on 15.01.1999 by the High Court.
14. It is, thus, clear that having failed to assail the success of
the selected candidates, the only string for the respondent to
cling on was the statement recorded on 15.01.1999. The effect
of such statement cannot result in wiping out the adjudication of
the respondent’s claim on merits. In other words, the respondent
cannot claim any higher right especially when it was found by the
Tribunal and affirmed by the High Court that his placement in the
Reserved Panel was correct and requiring no interference. The
appellants are justified in contending that such statement as
made on 15.01.1999 cannot have the effect of requiring them to
act in violation of the Recruitment Rules.
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 17 of 22
15. At this stage, it would be necessary to refer to a few
decisions of this Court on the binding effect of a concession made
by counsel on a question of law in the field of service
jurisprudence. In Uptron India Limited Vs. Shammi Bhan and
another9
, the issue pertained to the legality of a Standing Order
permitting automatic termination of the services of a permanent
employee on account of overstaying leave without permission for
more than seven days. The employer sought to support the
relevant Standing Order on the basis of the concession of the
employee’s counsel that the Standing Order was not invalid. In
paragraphs 22 and 23, this Court observed as under:
“22. Learned counsel for the petitioner has placed
strong reliance upon a decision of this Court in Civil
Appeal No.3486 of 1992, Scooters India & Ors. vs. Vijay
E.V. Eldred, decided on 03.10.1996, in support of his
contention that any stipulation for automatic termination
of Services made in the Standing Orders could not have
been declared to be invalid. We have been referred to a
stray sentence in that judgment, which is to the following
effect:
“It is also extraordinary for the High Court to have
held clause 9.3.12 of the standing orders as
invalid.”
This sentence in the judgment cannot be read in isolation
and we must refer to the subsequent sentences which
run as under:
“Learned counsel for the respondent rightly made
no attempt to support this part of the High Court’s
order. In view of the fact that we are setting aside
9 1998 INSC 74
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 18 of 22
the High Court’s judgment, we need not deal with
this aspect in detail.”
23. In view of this observation, the question whether
the stipulation for automatic termination of services for
overstaying the leave would be legally bad or not, was
not decided by this Court in the judgment relied upon by
Mr. Manoj Swarup. In that judgment the grounds on
which the interference was made were different. The
judgment of the High Court was set aside on the ground
that it could not decide the disputed question of fact in a
writ petition and the matter should have been better left
to be decided by the Industrial Tribunal. Further, the High
Court was approached after more than six years of the
date on which the cause of action had arisen without
there being any cogent explanation for the delay. Mr.
Manoj Swarup contended that it was conceded by the
counsel appearing on behalf of the employee that the
provision in the Standing Orders regarding automatic
termination of services is not bad. This was endorsed by
this Court by observing that “Learned counsel for the
respondent rightly made no attempt to support this part
of the High Court’s order.” This again cannot be treated
to be a finding that provision for automatic termination of
services can be validly made in the Certified Standing
Orders. Even otherwise, a wrong concession on a
question of law, made by a counsel, is not binding on his
client. Such concession cannot constitute a just ground
for a binding precedent. The reliance placed by Mr.
Manoj on this judgment, therefore, is wholly out of place.”
16. In Central Council for Research in Ayurveda & Siddha &
another Vs. Dr. K. Santhakumari10
, the issue pertained to
promotion on a selection post. Though the principle of merit-cumseniority was prescribed, the employer in its affidavit before the
High Court stated that the principle of seniority-cum-merit was
applicable. On that basis, the employee was held entitled to be
10 2001 INSC 259
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 19 of 22
promoted. Before this Court, the relevant rules indicating the
principle of merit-cum-seniority were placed. In that context, it
was held :
“In the instant case, the selection was made by
Departmental Promotion Committee. The Committee
must have considered all relevant facts including the
inter-se merit and ability of the candidates and prepared
the select list on that basis. The respondent though
senior in comparison to other candidates, secured a
lower place in the select list, evidently because the
principle of "merit-cum-seniority" had been applied by the
Departmental Promotion Committee. The respondent
has no grievance that there was any malafides on the
part of the Departmental Promotion Committee. The only
contention urged by the respondent is that the
Departmental Promotion Committee did not follow the
principle of "seniority-cum-fitness". In the High Court, the
appellants herein failed to point out that the promotion is
in respect of a ’selection post’ and the principle to be
applied is "merit-cum-seniority". Had the appellants
pointed out the true position, the learned Single Judge
would not have granted relief in favour of the respondent.
If the learned Counsel has made an admission or
concession inadvertently or under a mistaken impression
of law, it is not binding on his client and the same cannot
enure to the benefit of any party.
This Court in Uptron India Ltd. Vs. Shammi Bhan and
Another AIR 1998 SC 1681 pointed out that a wrong
concession on question of law made by counsel is not
binding on his client and such concession cannot
constitute a just ground for a binding precedent.
Therefore, even if the appellants had mistakenly
contended in the High Court that the principle of
seniority-cum-fitness was to be followed for promotion to
the post of Research Officer, the departmental rules
clearly show that the promotion was in respect of a
’selection post’ and the promotion was to be made on the
basis of the inter-se merit of the eligible candidates. In
that view of the matter, the respondent was not entitled
to get promotion to the post of Research Officer on the
strength of her seniority alone. The seniority list prepared
by the Departmental Promotion Committee was not
challenged by the respondent on other grounds and we
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 20 of 22
also do not find any ground to assail that select list. Thus,
the Writ Petition is liable to be dismissed by setting aside
the orders made therein and in the writ appeal arising
therefrom. Therefore, the appeal succeeds and is
allowed, however, without costs.”
Reliance placed on the decisions in Director of Elementary
Education and The Employees’ State Insurance Corporation
(supra) by the learned counsel for the appellants is also apposite.
The appellants are, thus, within their right in canvassing the
correct position of law by urging that the absorption of the
respondent at this stage would result in violation of the
Recruitment Rules. In this factual and legal backdrop, the ratio of
the decisions relied upon by the learned counsel for the
respondent cannot further the case of the respondent.
17. It appears that the High Court was much impressed by the
fact that the statement made on 15.01.1999 on behalf of the
appellants was not being honoured. It is true that a statement
made before the Court has its solemnity and the party making
such statement is bound to comply with the same. At the same
time, it has to be seen as to whether such statement in the form
of a concession, if given effect to would result in violation of any
statutory rules or regulations. If such consequence is likely to
flow, it would be open for the affected party on whose behalf such
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 21 of 22
concession in law was made to place before the Court the correct
position of law and urge that it may not be compelled to give
effect to an erroneous concession made on law. In the present
case, giving effect to such statement made on 15.01.1999 would
result in a waitlisted candidate being given an appointment
notwithstanding the fact that all selected candidates in the said
recruitment process had duly joined their posts and there was no
occasion to operate the wait list. It would amount to filling in one
post in the subsequent recruitment on the basis of an exercise
carried out in the previous recruitment. This would definitely
cause prejudice to the candidates seeking recruitment in the
subsequent process as the vacancies would stand reduced.
Moreover, it would also extend the life of the wait list though all
vacancies stand filled in, which would be impermissible.
In these facts therefore, we find that the appellants are
justified in contending that the statement dated 15.01.1999
cannot be acted upon as it would result in conferring benefit on a
waitlisted candidate to which he otherwise in law is not entitled
to. The same is also not shown to be permissible under the
Recruitment Rules. It appears that the High Court glossed over
these vital aspects while directing the appellants to absorb the
Civil Appeal arising out of SLP(Civil) Diary No. 57192 of 2024 Page 22 of 22
services of the respondent. The available vacancies having been
filled up in 1997 resulted in exhaustion of the wait list and the said
process of recruitment had come to an end. The High Court has,
therefore, erred in directing the absorption of the respondent.
18. For all these reasons, the judgment of the High Court dated
25.06.2024 in WPCT No.24 of 2021 is found to be unsustainable
in law. It is accordingly set-aside and the writ petition preferred
by the respondent stands dismissed. The civil appeal is allowed
in the aforesaid terms with no order as to costs. Pending
applications stand disposed of accordingly.
…………………………………………..J.
[PAMIDIGHANTAM SRI NARASIMHA]
…..………………………..J.
[ATUL S. CHANDURKAR]
NEW DELHI,
OCTOBER 15, 2025.
