TMI Blog2009 (1) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... difficult for us to opine as has been contended by the ld counsel that all such vacancies existed. Before the Division Bench of the High Court, the State conceded that 18 original writ petitioners may be appointed stating that they were the actual beneficiaries of the judgment. Such a stand on the part of the State was accepted. The Division Bench of the High Court did not go into the other contentions raised by the parties thereto. No factual foundation, therefore, has been laid before us for arriving at the conclusion that all the 125 vacancies existed. There is another aspect of the matter which cannot also be lost sight of. A person does not acquire a legal right to be appointed only because his name appears in the select list. In Shankarsan Dash vs. Union of India [ 1991 (4) TMI 444 - SUPREME COURT] , a Constitution Bench of this Court held that 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. Furthermore, the rank list was vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Education to report all the vacancies to the Commission so as to enable it to advise the respective candidates pursuant whereto and in furtherance whereof the appointing authority may issue offers of appointment. It is stated that the appellants were parties therein. 4. On or about 3.6.2000, pursuant to the direction of the High Court, dated 22.5.2000, the Deputy Director of Education reported 125 vacancies and on or about 5.6.2000, he reported further 50 vacancies just before the expiry of the rank list with a note that they were anticipated vacancies. However, as the vacancies were shown as anticipated vacancies, the Commission could not issue letter of advise against those 175 vacancies reported by the Deputy Director of Education. 5. On or about 24.10.2001, the said writ petitions were heard and disposed of by the Division Bench of the High Court, holding: We are of the view since there is controversy between the parties with regard to the number of vacancies it would be appropriate that a direction be given to first respondent to take a decision on the dispute raised in this proceeding. 6. In compliance of the said judgment, the State of Kerala issued a Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 15.1.2002. No direction was issued in respect of those who got themselves impleaded as parties therein including the appellants herein. 10. Appellants are, thus, before us, contending that as their names appeared in the `rank list' and they being seniors to some of the original writ petitioners they should also be directed to be appointed. 11. Ms. Malini Poduval, learned counsel appearing on behalf of the appellants would submit: i. the High Court committed a serious error of law in passing the impugned judgment insofar as it failed to take into consideration that as the appellants are similarly situated with that of the original writ petitioners to whom the State Government agreed to give appointment. ii. There was absolutely no reason as to why they should have been discriminated against particularly when they had also got themselves impleaded as respondents in the writ appeal. 12. Mr. Vipin Nair, learned counsel appearing on behalf of the respondents, on the other hand, would urge that the respondents having filed no writ petition and keeping in view of the fact that not only the rank list in question but also the 2nd rank list for the period between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foundation, therefore, has been laid before us for arriving at the conclusion that all the 125 vacancies existed. 15. There is another aspect of the matter which cannot also be lost sight of. A person does not acquire a legal right to be appointed only because his name appears in the select list. [See Pitta Naveen Kumar ors. vs. Raja Narasaiah Zangiti ors. (2006) 10 SCC 261]. 16. The state as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to the filling up of the vacancies or an arbitrariness is committed, the concerned candidate will have no legal right for obtaining a writ of or in the nature of mandamus. [See Batiarani Gramiya Bank vs. Pallab Kumar ors. (2004) 9 SCC 100] In Shankarsan Dash vs. Union of India [(1991) 3 SCC 47], a Constitution Bench of this Court held: 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory rules. All recruitments, therefore, are required to be made in terms thereof. Although Rule 9(3) of the Rules does not specifically provide for the period for which the merit list shall remain valid but the intent of the legislature is absolutely clear as vacancies have to be determined only once in a year. Vacancies which arose in the subsequent years could be filled up from the select list prepared in the previous year and not in other manner. Even otherwise, in absence of any rule, ordinary period of validity of select list should be one year. In State of Bihar v. Amrendra Kumar Mishra (2006) 12 SCC 561, this Court opined: (SCC p.564, para 9) 9. In the aforementioned situation, in our opinion, he did not have any legal right to be appointed. Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel. It was further held: (SCC p.565, para 13) 13. The decisions noticed hereinbefore are authorities for the proposition that even the wait list must be acted upon having regard to the terms of the advertisement and in any event cannot remain operati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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