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Sunday, February 17, 2013

vacant post of Headmaster at Howrah Siksha Niketan, “… 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….” 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 were informed by the parties that the respondent No.1 has 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.


Page 1
 
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
Page 12
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