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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1310 OF 2013
(Arising out of S.L.P. (C) No.28824 of 2011)
Vijoy Kumar Pandey …Appellant
Versus
Arvind Kumar Rai & Ors. …Respondents
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. This appeal by special leave is directed against the judgement
and order dated 29th January, 2010 passed by the Division Bench of
the High Court of Judicature at Calcutta whereby in FMA
No.1415/2009 filed by the respondent No.1 has been allowed, the
order passed by the Single Judge of that Court set aside and the
respondent-School Service Commission directed to act in terms of an
earlier order dated 12th March 2009 passed by that Court in Writ
Petition No. 6117(W) of 2004. The controversy arises in the following
backdrop.
3. Against the vacant post of Headmaster at Howrah Siksha
Niketan, as many as five candidates applied for appointment to thePage 2
School Service Commission, West Bengal. The Commission found two
of those applying for the post to be ineligible but short listed the
remaining three for consideration. Kavindra Narayan Roy, one of the
candidates found ineligible questioned the rejection of his candidature
in Writ Petition No.6117 (W) of 2004 filed before the High Court of
Calcutta and obtained an interim order staying publication of the
panel. That order continued to remain operative for nearly five years
till 2009 when the writ petitioner-Kavindra Narayan Roy withdrew the
said petition as he had by that time attained the age of
superannuation. The Single Judge of the High Court of Calcutta while
dismissing the writ petition as withdrawn vacated all interim orders
but directed that the period during which the panel could not be
operated due to the interim order passed in the writ petition should
be excluded for computing the life of the panel.
4. The School Service Commission, it appears, took no further
steps in the matter nor was the panel published. This led to the filing
of the two writ petitions one of which happened to be Writ Petition
No.5866 (W) of 2009 filed by respondent No.1-Shri Arvind Kumar Rai
in which the said petitioner sought a mandamus directing the School
Service Commission to recommend his name for appointment against
the available vacancy. His case was that since the Rajaram
Choudhary who was placed at serial no.1 in the merit list had retiredPage 3
from service, he alone could be considered for appointment as he
figured at serial No.2 of the list.
5. The above petition came up before Dipankar Datta, J. and was
dismissed by an order dated 27th July, 2009 holding that since more
than five years had elapsed ever since the selection process was
initiated and since no panel had been published by the School Service
Commission it was not possible to direct the Commission to appoint
the petitioner-Shri Arvind Kumar Rai as Headmaster of the school.
The Court further held that during the intervening period of five years
several other candidates would have acquired eligibility for
consideration/appointment against the post of Headmaster of school
and that in fairness to all of them they ought to be given a chance to
offer their candidature. The Court further held that as the panel had
not been published the writ petitioner could not claim a
recommendation as of right and that discretionary remedy under
Article 226 of the Constitution could be exercised only when the Court
was satisfied that it was equitable to do so.
6. The appellant-Vijoy Pandey, too, in the meantime, filed Writ
Petition No.7310 (W) of 2009 in which he prayed for a direction to the
respondents to rescind, cancel and withdraw the panel for the post of
Headmaster of the school prepared on the basis of the interview held
on 6
th
January, 2004. A Single Bench of the Calcutta High CourtPage 4
entertained the said petition and by an order dated 4
th
August, 2009
directed status quo to be maintained regarding appointment to the
post of Headmaster. Three appeals came to be filed in the above
background before the Division Bench of the High Court. One of these
appeals filed by Arvind Kumar Rai was directed against order dated
27
th
July, 2009 passed by Dipankar Datta, J in Writ Petition No.5866
of 2009. The second appeal, too, was filed by Arvind Kumar Rai
assailing order dated 4
th
August, 2009 passed by Soumitra Pal J. in
Writ Petition No.7310 of 2009 directing status quo to be maintained.
The third appeal was filed by appellant-Vijoy Kumar Pandey against
order dated 12
th
March, 2009 passed by Dipankar Datta, J. in Writ
Petition No.6117 (W) of 2004 whereby the School Service
Commission had been directed to exclude the period during which
there was an interim order, while computing the life of the panel.
7. The first of the abovementioned three appeal was allowed by
the Division Bench by an order dated 29
th
January, 2010 setting aside
order dated 27
th
July, 2009 passed by Dipankar Datta, J. with a
direction to the School Service Commission to act in terms of the
earlier order dated 12
th
March, 2009 passed by the very same Hon’ble
Judge. Taking note of the said order of the Division Bench the second
mentioned appeal preferred against the interim order dated 4
th
August, 2009 passed by Soumitra Pal J. was held to be infructuousPage 5
and was disposed of by the Division Bench by an order dated 23
rd
August, 2010. The Court was of the view that in the light of the
direction issued by a coordinate Bench directing the School Service
Commission to give effect to the order dated 12
th
March, 2009 passed
by the Dipankar Dutta, J. it was not possible to give any contrary
direction to the Commission and that the interim order passed by the
Single Judge to that effect had lost its force on that count.
8. As regards the appeal filed by the appellant-Vijoy Kumar
Pandey the Division Bench in its order dated 23
rd
August, 2010 held
that in the light of the order dated 29
th
January, 2010 passed by a
coordinate Bench there was no scope of challenging order dated 12
th
March, 2009 passed by Dipankar Datta, J. The Court made it clear
that the appellant will be free to seek appropriate remedy before the
appropriate forum in accordance with law. A special leave petition
filed against the aforementioned order dated 23
rd
August, 2010
passed by the Division Bench was withdrawn and was dismissed by
this Court by order dated 21
st
January, 2011.
9. The present appeal assails the correctness of the judgment
and order dated 29
th
January, 2010 whereby the Division Bench of
the High Court has allowed F.M.A. No.1415 of 2009 and set aside
order dated 27
th
July, 2009 passed by Dipankar Datta J. in Writ
Petition No.5866 (W) of 2009 with W.P. 6117 (W) of 2004 andPage 6
directed that the Commission shall act in accordance with order dated
12
th
March, 2009 passed by the same Hon’ble Judge in Writ Petition
No.6117(W) of 2004.
10. We have heard learned counsel for the parties at considerable
length. Even though we have retraced in detail the chequered history
of the litigation between the parties the question that falls for
determination actually lies in a narrow compass. The question
precisely is whether any panel of candidates has been prepared by
the Commission in accordance with the provisions of the West Bengal
School Service Commission (Procedure for selection of persons for
appointment to the post of teachers including Head Masters/Head
Mistresses Superintendent of Senior Madarasa in recognized nonGovernment Aided Schools and procedure for conduct of business of
the Commission), Regulations, 1988; and if so, whether the same
continued to be valid and subsisting to entitle the selected candidates
or any one of them to a mandamus directing the competent authority
to make an appointment on the basis thereof. We must regretfully
say that although repeated rounds of litigation have engaged the
attention of the High Court, the High Court has not adverted to the
question whether a panel was indeed prepared and published. It is
only in its order dated 27
th
July, 2009 passed in W.P. No.5866 of
2009 that Dipankar Datta, J. has noticed the non-preparation andPage 7
publication of such a panel and clearly held that since the panel has
not been published, no recommendation or appointment could be
claimed by any one of the candidates competing for the same. We
need hardly emphasise that preparation and publication of a panel
was the least which any candidate seeking appointment on the basis
thereof was required to establish. We repeatedly asked Mr. Dhruv
Mehta, learned senior counsel appearing for Mr. Arvind Kumar Rai,
the contesting respondent whether any such panel was ever prepared
and published as it ought to be, having regard to the very nature of
the procedure prescribed under the Regulations mentioned above. To
the credit of Mr. Mehta, we must say that he fairly conceded that no
such panel was ever published. Not only that, Mr. Mehta did not
dispute the proposition, and in our opinion rightly so, that publication
of such a panel was absolutely essential not only because the entire
process was regulated by statutory regulations but also because the
publication was essential in the interest of transparency and probity
in matters concerning appointments to offices under the State and in
matters affecting rights of the citizens in discharge of governmental
functions.
11. We may at this stage refer to a decision of this Court in State
of Andhra Pradesh & Ors. v. D. Dastagiri & Ors., (2003) 5 SCC
373. In that case although the State Government had notified thePage 8
vacancies and the process of recruitment had been initiated, the
results of the interviews thus conducted were not declared and no
select list was published. The recruitment process was subsequently
cancelled. The respondent candidates filed writ petitions before the
High Court seeking a mandamus directing the appellants to appoint
them, which were allowed. However, this Court allowed the appeals
against the High Court’s order, observing:
“4. In the counter-affidavit filed on behalf of the respondents
… it is stated that the process of selection was cancelled at the
last stage i.e. before publishing the list of selected candidates
on the sole ground that the State Government wasted to
introduce prohibition and obviously the Government felt that
there was no need of Excise Constables during imposition of
prohibition in the State. There is serious dispute as to the
completion of the selection process. According to the
appellants, the selection process was not complete. No record
has been placed before us to show that the selection process
was complete, but, it is not disputed that the select list was
not published. In para 16 of the counter affidavit, referred
above, the respondents themselves had admitted that the
selection process was cancelled at the last stage. In the
absence of publication of select list, we are inclined to think
that the selection process was not complete. Be that as it
may, even if the selection process was complete and
assuming that only select list remained to be published, that
does not advance the case of the respondents for the simple
reason that even the candidates who are selected and whose
names find place in the select list, do not get vested right to
claim appointment based on the select list…”
(emphasis supplied)
12. We too have at hand a situation where no panel, as is
envisaged under the provisions of the regulations, ever came into
existence. That being so, the question of determining the life of thePage 9
panel by excluding the period during which there was an interim stay
in accordance with the order of Dipankar Datta, J. in its order dated
12
th
March, 2009 did not arise. It follows that the claim made by
respondent-Arvind Kumar Rai for appointment on the basis of such a
non-existent panel was untenable as the panel itself was still born.
We need not burden this judgment by referring to the decisions of
this Court in which this Court has repeatedly held that the
preparation of a select list or a panel does not by itself entitle the
candidate whose name figures in such a list/panel to seek an
appointment or claim a mandamus. No vested right is created by the
inclusion of the name of a candidate in any such panel which can for
good and valid reasons be scrapped by the competent authority
alongwith the entire process that culminated in the preparation of
such a panel.
13. In Shankarsan Dash v. Union of India, (1991) 3 SCC 47
a Constitution Bench of this Court was examining whether candidates
declared successful in a selection process acquire an indefeasible right
to get appointed against available vacancies. The contention that they
do acquire such a right was repelled in the following words:
“7. 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 thePage 10
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.”
(emphasis supplied)
14. Above decision has been followed in a long line of subsequent
decisions of this Court including those rendered in Punjab State
Electricity Board v. Malkiat Singh, (2005) 9 SCC 22; State of
Bihar & Ors. v. Secretariat Assistant Successful Examinees
Union & Ors., (1994) 1 SCC 126; Director, SCTI for Medicine
Science and Technology v. M. Pushkaran, (2007) 12 SCC 465;
Union of India v. Kali Dass Batish, (2006) 1 SCC 779 [which is a
three Judge Bench decision].
15. In Rakhi Ray & Ors. v. The High Court of Delhi, (2010) 2
SCC 637, a three-Judge Bench of this Court held:
“… A person whose name appears in the select list does not
acquire any indefeasible right of appointment. Empanelment
at the best is a condition of eligibility for purpose of
appointment and by itself does not amount to selection or
create a vested right to be appointed. The vacancies have to
be filled up as per the statutory rules and in conformity with
the constitutional mandate….”
16. Following the decision in Shankarsan Dass case (supra), this
Court in State of Orissa & Anr. v. Rajkishore Nanda & Ors., 2010
(6) SCALE 126 held:Page 11
“A person whose name appears in the select list does not
acquire any indefeasible right of appointment. Empanelment
at the best is a condition of eligibility for purpose of
appointment and by itself does not amount to selection or
create a vested right to be appointed. The vacancies have to
be filled up as per the statutory rules and in conformity with
the constitutional mandate.”
17. Even assuming the preparation of a panel gave rise to any
such right, since no panel had actually ever been prepared and
published nor has the same been produced before the High Court or
before us, we have no hesitation in holding that the direction issued
to the Commission to act on the basis of the panel was wholly
unjustified and unsustainable. The view taken by Dipankar Datta, J.
in his order dated 27th July, 2009 that considerable time had expired
since the selection process was initiated and that other candidates
who may have in the meantime become qualified for consideration
may be deprived of the right to compete was a reason enough for the
High Court to decline a mandamus. In the facts and circumstances of
the case, the Division Bench of the High Court, in our view,
committed an error in upsetting that direction. We also see no real
conflict between the orders passed by Dipankar Datta, J. on 12th
March, 2009 and that passed on 27th July 2009, inasmuch as the
question of the adding to the life of the panel the period during which
there was a stay would arise only if there was a panel drawn in terms
of the Regulations.
18. We were informed by the parties that the respondent No.1 has
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been appointed as Headmaster during the pendency of the litigation
at the pain of contempt proceedings against the parties. That
appointment has come sometime in September 2010. Since, the
order passed which appears to have culminated in the making of the
appointment is being set aside, the question is whether we should
direct immediate removal of the respondent or continuance of the
arrangement till such time fresh selection process is initiated and
completed in accordance with law. In our opinion, not only because
the respondent has been holding the post for two years, but also
because his removal would not immediately result in any benefit
either to the institution or to the appellant before us, we, therefore,
permit him to continue holding the post but only till such time a fresh
selection is made against the vacancy.
19. In the result, we allow this appeal, set aside the order passed
by the Division Bench and affirm that passed by Dipankar Datta, J.
dated 27
th
July, 2009 with the above direction. We make it clear that
the respondent No.1 shall be entitled to all the monetary benefits for
the period during which he actually works as the Headmaster of the
school. The fact that he so works would not, however, create any
equity in his favour nor constitute an additional weightage in the new
selection process.
20. Parties are directed to bear their own costs.Page 13
……..………….……….
…..…J.
(T.S. Thakur)
…………………………..…..…J.
(M.Y. Eqbal)
New Delhi,
February 13, 2013
