Madras High Court

K.V.Sarveswaran vs The Chief Secretary on 29 October, 2021

WP No. 8430 of 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.10.2021

CORAM

THE HONOURABLE MR. JUSTICE R. MAHADEVAN

Writ Petition No. 8430 of 2020
and
WMP. No. 10134 of 2020

K.V.Sarveswaran ... Petitioner
Versus
1.The Chief Secretary
Government of Puducherry,
Puducherry.

2.The Secretary (Housing)
Government of Puducherry
Puducherry.

3.The Nodal Officer cum Chief Town Planner
Town and Country Planning Department,
Government of Puducherry,
Puducherry. ... Respondents

Petition filed under Article 226 of The Constitution of India praying to
issue a Writ of Mandamus directing the respondents to operate the select list
forwarded by the Selection Committee constituted under the Puducherry Real
Estate (Regulation and Development) General Rules, 2017 and appoint the
petitioner herein as Member of the Puducherry Real Estate Regulatory
Authority.

For Petitioner : Mr. V. Vijay Shankar
For Respondents :
https://www.mhc.tn.gov.in/judis Mrs. N. Mala, Government Pleader (Puducherry)

1/35
WP No. 8430 of 2020

ORDER

The petitioner has filed this writ petition praying to issue a Writ of

Mandamus directing the respondents to proceed with the select list forwarded

by the Selection Committee constituted under the Puducherry Real Estate

(Regulation and Development) General Rules, 2017 and to appoint him as a

Member of the Puducherry Real Estate Regulatory Authority.

2. It is stated by the petitioner that he initially worked as a

Probationary Officer in Indian Bank from May 1983 and he subsequently,

joined as an Assistant Provident Fund Commissioner under the Employees

Provident Fund Organisation, Ministry of Labour during October 1990. In the

year 1996, he was promoted as Regional Provident Fund Commissioner

Grade I. While so, he was appointed as Recovery Officer in the Debts

Recovery Tribunal (DRT), Bangalore on deputation for a period of six years

between 2000 and 2006. Thereafter, the petitioner was promoted as Additional

Central Provident Fund Commissioner and handled several statutory and

administrative works and he ultimately retired from service with effect from

28.02.2019.

https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

3. The petitioner would further state that the Government of India

promulgated the Real Estate (Regulations and Development) Act, 2016 (in

short, 'the Act') which envisages the constitution of a Real Estate Regulatory

Authority for each State. In order to give effect to the Act, the Government of

Puducherry issued the Puducherry Real Estate (Regulation and Development)

General Rules, 2017. Chapter VI, more particularly Rule 17 deals with the

selection of Chairperson and Members of the Authority. For the purpose of

appointment of Chairperson and two members for the Puducherry Real Estate

Regulatory Authority, the Government of Puducherry issued an advertisement

on 11.07.2018 followed by another advertisement on 28.08.2018. In response,

the petitioner submitted his application through proper channel for the post of

Member, enclosing all the records to show his past experience. The selection

committee finally recommended two names to the Government to select one

among them for appointment to the post of Chairman and four names to the

Government to select two among them for the post of Members. The name of

the petitioner was included in Serial No. 3 in the list for appointment of

Member. Thereafter, G.O.Ms.22/2019-Hg dated 15.11.2019 was issued

appointing Thiru. Ashok Kumar, I.P.S. as Chairman, Thiru. S.Ragunathan and

Thiru. Ramakrishna Rao Ravi as members. It is also stated by the petitioner

that Thiru. Ashok Kumar and Thiru. S. Ragunathan, whose names were https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

indicated in Serial No.1 of the select list for appointment to the post of

Chairman and Member expressed their unwillingness and Thiru. Ramakrishna

Rao Ravi, whose name was indicated in Serial No.2 joined as a Member. So,

for appointment of Chairman and one more member, the respondents resorted

to a fresh selection process without considering the name of the petitioner,

whose name was indicated in Serial No.3 in the select list. According to the

petitioner, when the person whose name was indicated in Serial No.1

expressed his unwillingness, then the respondents ought to have appointed the

person in Serial No.2 as well as the petitioner, whose name was indicated in

Serial No.3 as members. It is also submitted that the petitioner is also fully

qualified for being appointed to the post of Member and his name was also

recommended by the selection committee. While so, resorting to a fresh

selection process for appointment to the post of Member is uncalled for. It is in

those circumstances, the petitioner has come up with this writ petition before

this Court.

4. The learned counsel for the petitioner vehemently contended that

a fresh selection process for appointment of a candidate to the post of Member

is unwarranted. The selection committee has already recommended the names

of 4 candidates, including the petitioner, for appointment to the post of two https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

Members. Thiru.S.Raghunathan, whose name was recommended by the

committee and placed in Serial No.1 of the list, expressed his unwillingness to

get appointed and therefore, the candidates in Serial No. 2 (Ramakrishna Rao

Ravi) and Serial No.3 (petitioner) ought to have been appointed to the post of

Member. However, for the reasons best known, the respondents are resorting

to a fresh selection process. If the person in Serial No.1 expressed his

unwillingness, as a natural corollary, the persons in Serial Nos. 2 and 3 ought

to have been appointed to the post of Member and there is no necessity to go

for a fresh selection process, which is not only time consuming but also an

arbitrary exercise to exclude the petitioner from being appointed to the post of

Member. The process of appointment had already taken a longer period and

any further delay in the matter of appointment of Chairman and Members

would result in unnecessary spending of public money. In order to substantiate

his contention, the learned counsel placed reliance on the decision of the

Supreme Court in State of Haryana v. Subash Chander Marwaha and

others [1973 AIR 2216] wherein it was held that the one, who is higher in

rank is deemed to be more meritorious than the one who is in lower in rank.

However, it could never be said that one who tops the list is equal in merit to

the one who is at the bottom of list. Except that, they are all mentioned in one

list and each one of them stands on a separate level of competence as https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

compared with the another. By pointing out the ratio laid down by the

Supreme Court in the decisions in Prakash H. Jain v. Marie Fernandes

[AIR 1991 SC 1612], Manoj Manu and another v. Union of India and

others [2013 12 SCC 171], Rakhi Ray and others v. High Court of Delhi

and others [(2010) 2 SCC 637], Arup Das and others v. State of Assam and

others [(2012) 5 SCC 559] and the Division Bench of this court in J.Arun

Prasad v. TNPSC and others [2018 SCC Online Mad 823], it was

contended by the learned counsel that once a selection list has been drawn on

merits, then the candidates, whose name included thereon has a legitimate

right to get appointed to the post. The learned counsel therefore prayed this

Court to issue appropriate direction to the respondents to appoint the petitioner

to the post of Member on the basis of the select list forwarded by the selection

committee.

5. The learned Government Pleader (Puducherry) appearing for the

respondents, by placing reliance on the counter affidavit filed by the third

respondent, would contend that it is true that the name of the petitioner finds

place in Serial No.3 of the list recommended by the selection committee. After

receipt of the applications from the candidate, the selection committee met on

06.12.2018 and decided to call for C & A reports from the Intelligence Bureau https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

(IB) in the first instance. The C & A Report received from the Ministry of

Home Affairs on 11.02.2019. After receipt of the report, the selection

committee, in the meeting held on 28.02.2019 selected two persons for each

vacancy and recommended to the Government for selection and appointment

to the post of Chairperson and two Members for Puducherry Real Estate

Regulatory Authority. On the basis of such recommendation, the Government

of Puducherry issued G.O. Ms. No.22/2019-Hg, dated 15.11.2019 appointing

Thiru. Ashok Kumar, I.P.S. (Retired) as Chairperson and Thiru.S. Ragunathan

and Thiru. Ramakrishna Rao Ravi as Members. After such appointment, the

Chairperson Thiru. Ashok Kumar, I.P.S. (Retired) and Thiru.S.Ragunathan

conveyed their unwillingness vide letter dated 08.01.2020 and 24.12.2019 to

take up the post. While so, the only member Thiru. Ramakrishna Rao Ravi

accepted the offer and reported for duty on 02.12.2019. In this context, a

proposal was submitted on 10.01.2020 to the Government to take a decision

for appointment of Chairperson and one Member from the remaining

candidates recommended by the selection committee. However, the

Government, on consideration of the Act, wherein, there is no provision for

filling up of vacant post from among the candidates in the waiting list, has

issued orders going for fresh selection process. Therefore, the petitioner

cannot question the selection process resorted to by the Government. Thus, https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

according to the learned Government Pleader (Puducherry), the petitioner

cannot assert, as a matter of right, that he has to be selected to the post of

Member on the basis of the recommendation made by the selection committee

at the first instance and therefore prayed for dismissal of the writ petition.

6. Heard the learned counsel for the petitioner as well as the learned

Government Pleader (Puducherry) for the respondents and perused the

materials placed on record.

7. Before venturing into the facts of the case, it is important to refer

to the relevant provisions of law. Section 20 of the Real Estate (Regulation

and Development) Act, 2016 deals with establishment and incorporation of

Real Estate Regulatory Authority, which reads as under:

“Section 20.

(1) The appropriate Government shall, within a period of one year from the date of coming into force of this Act, by notification, establish an Authority to be known as the Real Estate Regulatory Authority to exercise the powers conferred on it and to perform the funds assigned to it under this Act.

… … Provided also that until the establishment of a Regulatory Authority under this section, the appropriate Government, shall by order, designate any Regulatory Authority or any officer preferably the secretary of the department dealing with Housing, as the Regulatory Authority for the purposes under https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

this Act:

…..

8. Section 21 of the Real Estate (Regulation and Development) Act

2016, deals with the composition of the Authority, which is extracted below:

“21. Composition of the Authority.- The authority shall consist of a Chairperson and not less than two whole time Members to be appointed by the appropriate Government.”

9. In exercise of the powers conferred by section 84 and in

pursuance of sub-clause (ii) of clause (g) of section 2 of the Real Estate

(Regulation and Development) Act, 2016 (Act 16 of 2016), The Puducherry

Real Estate (Regulation and Development) (General) Rules, 2017 were framed

and notified on 18th July 2017. Rule 17 in Chapter VI which deals with the

appointment of Chairperson and members of the Authority, reads as follows:

“CHAPTER – VI Real Estate Regulatory Authority

17. Selection of Chairperson and Members of the Authority.— (1) As and when the vacancies of Chairperson or any Member in the Authority exist or arise, or likely to arise, the appropriate Government may make a reference to the Selection Committee in respect of the vacancies to be filled.

(2) The Selection Committee may, for the purpose of selection of the Chairperson or a Member of the Authority, follow such procedure as deemed fit, including the appointment of a Search Committee consisting of such persons, as the Selection https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

Committee considers appropriate to suggest a panel of names, for appointment as Chairperson or a Member of the Authority. (3) The Selection Committee shall select two persons for each vacancy and recommend the same to the appropriate Government.

(4) The Selection Committee shall make its recommendation to the appropriate Government within a period of sixty days from the date of reference made under sub-rule (1).

(5) The appropriate Government shall within thirty days from the date of receipt of the recommendation by the Selection Committee, appoint one of the two persons recommended by the Selection Committee for the vacancy of the Chairperson and the Members, as the case may be.”

10. The above provisions would indicate that it is mandatory for every

State/Union Territory to have a Regulatory Authority. It is also obvious that

every Regulatory Authority in the state will have a chairperson and atleast two

members. That apart, the right to appoint the chairperson and members vests

with the State/Union Territory. Rule 17 of the Puducherry Real Estate

(Regulation and Development) General Rules, 2017 lays down the procedure

for selection and appointment. As per Rule 17(1), whenever any vacancy

exists or arises or is likely to arise, the Government is to make a reference to

the Selection Committee. The Selection Committee is at liberty to fix the

procedure for selection and after following the process, it is to recommend two

names for each post. Within 30 days from the date of receipt of such

recommendation, the Government is at liberty to appoint one of the two https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

persons so recommended.

11. In the present case, the Selection Committee headed by the

Hon’ble Mr.Justice M.Sathyanarayanan, who along with the other members

namely the Secretary to the Government (Housing) and Law Secretary,

finalised the select list recommending two names for the post of chairperson

and four names for the post of two members as required under the Rules as

follows:

Two names for the post of Four names for the post of two Chairman members

1. Mr.Ashok Kumar 1. Mr.S.Ragunathan

2. Mr.G.Ramakrishnan 2. Mr.Ramakrishna Rao Ravi

3. Mr.K.V.Sarveswaran (Petitioner)

4. Mr.K.Uthirapathy

12. Thereafter, the Government exercising their discretion and

authority, appointed Mr.Ashok Kumar as the chairman, Mr.S.Ragunathan and

Mr.Ramakrishna Rao Ravi as members vide G.O.Ms.22/2019 Hg dated

15.11.2019. Upon receipt of the appointment order, Mr.S.Ragunathan vide

letter dated 24.12.2019 and Mr.Ashok Kumar vide letter dated 08.01.2020

expressed their unwillingness to join. Thereafter, a note was put up seeking the

permission of the Selection Committee to appoint either the petitioner or the

other candidate K.Uthirapathy as a member to the Regulatory Authority and https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

G.Ramakrishanan as the Chairman. However, an objection was raised by the

Secretary to Housing Department stating that since the selection list would

lapse on the appointment of the candidates and even if any vacancy arises,

only fresh applications would have to be invited. In the meantime, the

petitioner gave a representation and thereafter, has moved this Court. In the

mean while, Selection Committee decided to fresh applications. After the

retirement of Hon’ble Mr.Justice M.Sathyanarayanan, the committee was

presided over by Hon’ble Mr.Justice N.Kirubakaran, and it has recommended

a list of candidates and in view of the pendency of the writ petition, orders are

yet to be issued by the Government.

13. The bone of contention of the learned counsel for the petitioner is

that once a vacancy arises, the petitioner whose name is placed in Serial No.3

of the Selection list, ought to have been automatically appointed as the

member and hence the decision to again go for a fresh selection process is

arbitrary. This Court is not in consonance with the said contention raised on

the side of the petitioner for the following reasons.

14. Selection list is not a reserve or waiting list.

A selection list cannot be equated with a reserve or waiting list. A

reserve or a waiting list is one, wherein the candidates are arrayed in serial

number based on their merits and upon a post remaining unfilled from the https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

original list, the candidates on chronological order, from the reserve or waiting

list are given that opportunity. Similarly, the rules governing the appointment

would have to make way for such appointment from the reserve or waiting list.

On the contrary, a Selection list, as in the present case would indicate a list of

candidates who are eligible to be appointed. The inclusion of the name in the

selection list would not ipso fact entitle a candidate to get appointed. The

discretion to appoint a particular candidate named in the list ultimately rests

with the appointing authority. Similarly, the need to recommend two

candidates for one post would not mean that the second person is kept in

waiting or as a reserve. Though it is tempting to assume that fiscal reasons

could be the object behind the provision to recommend two names for every

post, careful analysis of the provision would throw lucidity to the issue. The

right to appoint the candidate has been vested with the government. The

recommendation of one name would leave the government with no authority to

exercise its discretion in appointing the suitable candidate. But for this

provision, the government would only have to be rubber stamp. The

legislature, in its wisdom has decided to leave the ultimate authority of

appointing the chairman and its members with the government.

https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

15. Governing Law.

Section 20 of the Act, as discussed in paragraphs 7 to 9 above, paves

way for the establishment and incorporation of the Regulatory Authority. Rule

17 of the Rules, dissects the role of the government and the Selection

Committee. As per the said provision, the government has basically twin role

when it decides to fill up the vacancy by doing away with any interim

arrangement, (1) to make a reference to the selection committee for filling up

the vacancy and (2) to appoint a candidate to the post of chairman or member

from the list sent by the Selection Committee at its discretion subject to the

proviso to section 22. Likewise, the role of the Selection Committee can also

be summarised in two folds, (1) to devise a procedure for selection and follow

the same to select the candidates, who satisfy the eligibility criteria under

Section 22; and (2) to send a list consisting of two candidates for each vacant

post to enable the government to issue appropriate orders of appointment. It is

to be noted here that there is no procedure to get the consent of the candidates

before issuance of appointment orders. That apart, whenever any vacancy

arises, the government is left with no option but to send a reference to the

committee. There is no provision either under the Act or the Rules to treat the

selection list as a reserve list or waiting list as well. Therefore, it cannot

appoint the next candidate in the selection list, which would amount to https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

violation of Section 20 of the Act. Insofar as the selection committee is

concerned, their role ends with recommending a list and it is not empowered to

recommend a reserve or waiting list in addition to the selection list. The

provisions also do not enable the Selection Committee to recommend the

remaining names from the list as a new selection list. Therefore, whenever a

vacancy arises, upon reference from the state, the Selection Committee must

devise a procedure for selecting the candidates. The Selection Committee in its

wisdom has decided to issue a notification for inviting applications afresh,

which in the view of this Court is sacrosanct with the provisions of the Act and

the Rules framed thereunder.

16. Status of Selection List.

The selection process of the committee under Rule 17 comes to an end

after the recommendation or the list is sent to the government and the entire

selection process upon issuance of an appointment order would automatically

stand terminated and list would stand exhausted unless there is a specific

provision to fill up the fallout vacancies from the select list. As found from the

provisions as discussed in paragraphs 7 to 9 and 14 above, there is no

provision for creation of a waiting list or reserve list or even to consider for

appointment, the unappointed candidates in the select list for the fallout

vacancy. The Selection list is only reflective of the eligibility and suitability of https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

the members. As held earlier, the object of the list is to enable the government

to appoint a suitable candidate for the post. Once the government has taken a

decision to appoint any person from the selection list, the requirement under

the law is fulfilled. In the present case, G.O.Ms.22/2019-Hg was issued on

15.11.2019 filling up all the post. A mere inclusion in the selection list will not

create an indefeasible right to be appointed, though such inclusion carries with

it a right to be considered for appointment. Therefore, this court holds that the

selection list stands exhausted upon issuance of appointment orders vide

G.O.Ms. 22/2019-Hg.

17. Arbitrariness.

The contention of the learned counsel for the petitioner that the decision

of the selection committee to again issue a fresh notification inviting

application to prepare a select list for the fallout vacancy is arbitrary. An act

can be said to be arbitrary if it is unreasonable, capricious, irrational or against

the prescribed law, rule or procedure. However, when an act is performed in

accordance with law, it would stand the test of reasonableness irrespective of it

being detrimental to the interest of any individual and cannot be termed as

arbitrary. There is no allegation of bias or malafide. This court has already

held in paragraphs 14 and 15 above that the selection list stood exhausted https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

upon issuance of the appointment orders, that the government had no option

but to refer the vacancy to the Selection Committee and that the selection

committee had no option but to invite fresh applications as there is no

provision either in the Act or the Rules for considering a left out or

unappointed candidate from the select list. Therefore, the actions of the

government or the selection committee cannot be termed as arbitrary.

18. Right to seek Mandamus.

A writ of mandamus can be sought only if the authority has failed in the

performance of a duty which by law he is bound to perform. Also, to seek the

relief, it is the duty of the petitioner to point out such provision of law, which

entitles him to the relief. The petitioner has filed the writ petition for a

direction to the respondents to appoint him as a member of the Regulatory

Authority on the basis that it is to be treated also as a reserve or waiting list.

This court in the preceding paragraphs 14 and 15 has discussed in detail and

held that there is no provision under the Act or the Rules by which a deeming

fiction can be given to a selection list and an unappointed person named in the

selection list can seek appointment. Thus, this court is of the view that the

actions performed by the respondents are in accordance with law and there is

no breach in the performance of any duty and hence, the petitioner has not

made out a case for issuance of a writ of mandamus.

https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

19. Judicial Pronouncements.

(a).Let us now consider the judgments relied upon by the learned

counsel for the petitioner, who also deserves a note of appreciation for citing

judgments which lay down the settled position of law, though against him, in

his valiant attempt to convince this court.

(i)State of Haryana v. Subash Chander Marwaha and others, [AIR

1973 SC 2216: 1974 3 SCC 220], wherein, the supreme court held as follows:

“5.It will be seen from this that the function under the rules given to the Punjab Public Service Commission was to hold the examination and then prepare a list strictly in accordance with merit on the basis of the marks received in the examination and this list was to be published in the Punjab Government Gazette. Thus it became public property and every candidate would know having regard to the vacancies whether he is likely to be appointed.

6.The list is of great importance. There could be no departure from the list either by the Public Service Commission, the High Court or the State Government. This will be seen from Part D which relates to appointments. Rule 1 in this part provides that “the names of candidates selected by Government for appointment as Subordinate Judges under Rules 10 and 11 of Part C shall be entered in the High Court Register in the order of their selection.” Rule 10(ii) in Part C referred to earlier stated that the “candidates will be selected for appointment” and Rule 1 in Part D says “that the selection was by Government for appointment”. Reading the two together it is clear that Government was bound to make the selection strictly in the order in which the names were mentioned by the Public Service Commission in the list and this selection was for the specific purpose of making appointments. There is no question of the High Court making any recommendations. Once the State Government has selected the names of the candidates strictly in accordance with the list, such selection for appointment is intimated to the High Court and the candidates so selected by Government for appointment are to be entered by the High Court in a register in the order of the selection. Obviously the register is to be kept by the High Court because the High Court knows in its administrative capacity what vacancies have occurred and which are the courts to which the appointments have to be made. The Service Rules have https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

been made in consultation with the Public Service Commission and the High Court and, therefore, they are binding on all. They show that the examination is the final test, apart from medical examination as per Rule 11 in Part C for a candidate's appointment to the post of the Subordinate Judges and once the list is prepared by the Public Service Commission strictly in order of merit, neither the Public Service Commission nor the State nor the High Court can depart from the order of merit given in the list except where reservations have been made in favour of Backward Classes and Scheduled Castes and Tribes in accordance with Rule 10(ii).” The above judgment has been relied upon by the learned counsel to contend

that once the list is finalised, it is binding on the government. This court is of

the view that though the list is binding on the government, it does not give any

right to the petitioner to seek appointment. This is fortified by para 10 of the

same judgment which reads as under:

“10. One fails to see how the existence of vacancies give a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list, and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, Rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence.”

https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

(ii)Shankarsan Dash v. Union of India, [(1991) 3 SCC 47 : 1991 SCC

(L&S) 800 : (1991) 17 ATC 95], wherein, the supreme court held as under:

“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 the 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. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 :

1986 SCC (L&S) 759] , or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899] .”

This judgment also does not aid the contention of the learned counsel for the

petitioner because this court has already held that the decision of the Selection

Committee or the government cannot be termed as arbitrary. It is to be pointed

out here that the government has not decided to leave the post vacant, but a

decision has been taken by the Committee to fill up the posts by inviting

applications afresh as per the provisions of the Act and Rules. Again, the

settled legal principle that a selected candidate will not get an indefeasible

right, is reiterated in the above judgment.

https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

(iii)Rakhi Ray v. High Court of Delhi, [(2010) 2 SCC 637 : (2010) 1

SCC (L&S) 652 : 2010 SCC OnLine SC 246], in which, it was held by the

supreme court as follows:

“7. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as “the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution”, of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to “improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale”, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law. (Vide Union of India v. Ishwar Singh Khatri [1992 Supp (3) SCC 84 : 1992 SCC (L&S) 999 : (1992) 21 ATC 851] , Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat [1994 Supp (2) SCC 591 : 1994 SCC (L&S) 1159 : (1994) 28 ATC 78] , State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986 [(1994) 1 SCC 126 : 1994 SCC (L&S) 274 :

(1994) 26 ATC 500 : AIR 1994 SC 736] , Prem Singh v. Haryana SEB [(1996) 4 SCC 319 : 1996 SCC (L&S) 934] and Ashok Kumar v. Banking Service Recruitment Board [(1996) 1 SCC 283 : 1996 SCC (L&S) 298 : (1996) 32 ATC 235 : AIR 1996 SC 976] .)” The facts of the above case are completely different. It is not the case of the

petitioner herein that the vacancies over the notified vacancies has been filled

up. This court has already held that the actions of the respondents cannot be

termed as arbitrary.

(iv) Arup Das v. State of Assam, [(2012) 5 SCC 559 : (2012) 2 SCC

(L&S) 24 : 2012 SCC OnLine SC 90], wherein, the supreme court observed

as follows:

https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

“17. It is well established that an authority cannot make any selection/appointment beyond the number of posts advertised, even if there were a larger number of posts available than those advertised. The principle behind the said decision is that if that was allowed to be done, such action would be entirely arbitrary and violative of Articles 14 and 16 of the Constitution, since other candidates who had chosen not to apply for the vacant posts which were being sought to be filled, could have also applied if they had known that the other vacancies would also be under consideration for being filled up.

18.In fact, in the decision rendered in Ishwar Singh Khatri case [1992 Supp (3) SCC 84 : 1992 SCC (L&S) 999 : (1992) 21 ATC 851] which was referred to by the High Court, this Court while considering the preparation of a panel of 1492 selected candidates as against the 654 actual vacancies notified, recorded the fact that after filling up the notified number of vacancies from the panel, no further appointments were made therefrom and instead fresh advertisement was issued for further appointment. Since a promise had been made in the minutes of the meeting of the Selection Board that the panel would be valid till all the candidates were offered appointments, this Court held that the Selection Board had taken into consideration anticipated vacancies while preparing the panel. It is on such basis that this Court had observed that it had to be concluded that the Selection Board had prepared the panels containing 1492 candidates, as against the then available vacancies, and, accordingly, the selected candidates had a right to get appointment. It is in such circumstances that further appointments from the published panel of 1492 candidates, as directed by the Tribunal, were upheld.” The above case is not applicable to the facts of this case as the Hon’ble Apex

Court was dealing with a case, wherein the appointments in excess to the

advertised posts were sought to be made by deviating from the advertisement.

Though a reference is made in the above judgment to Ishwar Singh case in

paragraph 18, there was a minutes of meeting wherein it was agreed that the

panel would be valid till all the candidates were offered for appointments. This

is not the case here as there is no such promise or provision under the statute

and section 20 makes it clear that whenever a vacancy arises, it has to be

referred to the Selection Committee and the rules do not have any saving https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

clause.

(v). Manoj Manu v. Union of India, [(2013) 12 SCC 171 : (2014) 2

SCC (L&S) 706 : 2013 SCC OnLine SC 722 at page 176], in which, the

supreme court observed as under:

“9. It can be clearly inferred from the reading of the aforesaid that it is not the case where any of these persons initially joined as Section Officer and thereafter resigned/left/promoted, etc. thereby creating the vacancies again. Had that been the situation viz. after the vacancy had been filled up, and caused again because of some subsequent event, position would have been different. In that eventuality UPSC would be right in not forwarding the names from the list as there is culmination of the process with the exhaustion of the notified vacancies and vacancies arising thereafter have to be filled up by fresh examination. However, in the instant case, out of 184 persons recommended, six persons did not join at all. In these circumstances when the candidates in reserved list on the basis of examination already held, were available and DoPT had approached UPSC “within a reasonable time” to send the names, we do not see any reason or justification on the part of UPSC not to send the names.

13. In the present case, however, we find that after UPSC sent the list of 184 persons/recommended by it to the Government for appointment, six persons out of the said list did not join. It is not a case where the Government decided not to fill up further vacancies. On the contrary DoPT sent requisition to UPSC to send six names so that the remaining vacancies are also filled up. This shows that insofar as the Government is concerned, it wanted to fill up all the notified vacancies. The requisition dated 20-11-2009 in this behalf was in consonance with its Clause 4(c) of OM dated 14-7-1967. Even when the Government wanted to fill up the posts, UPSC chose to forward names of three candidates.” The facts of the above case are different. In the above case as evident from

paragraph 4 of the judgment, the Hon’ble Supreme Court was dealing with a

case wherein there was an Office Memorandum by which if upon request by

the government, names from the reserve list can be forwarded. On facts,

though 6 names were requested, only three were forwarded. However, in the https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

present case, there is no scope for reserve list as per the applicable provisions

and upon the appointment orders being issued, the list stood exhausted.

Therefore, the above judgment is not applicable to the facts of this case.

(vi)J.Arun Kumar Vs The Tamil Nadu Public Service Commission

and others [2018 SCC OnLine Mad 823], wherein, it was held by the

Division Bench of this court as follows:

“10. Learned counsel for petitioner in W.P. No. 5629 of 2018 submitted that such petitioner, a woman candidate had been placed on the reserve list and consequential to Miss. Sujatha. K (Sl. No. 24) having left service, his client became entitled to be accomodated against such vacancy. While learned counsel for second respondent in W.P. No. 5629 of 2018 would concede such position, Mr. M. Baskar learned counsel for third respondent submitted that the Committee for Selection and Appointment of District Judges (Entry Level) and Civil judges, had resolved at its meeting on 09.01.2018 as follows: ‘Since the process has already started for fresh Notification, it is resolved that vacancy arising on account of resignation of Ms. K. Sujatha, in the cadre of Civil Judge can be filled up in the proposed selection process, where already steps have been taken and draft notification has been submitted by TNPSC.’

‘In publishing the registration number of candidates selected provisionally for appointment by direct recruitment to the post of Civil Judge in the Tamil Nadu State Judicial Service, the TNPSC has inter-alia informed the registration number of candidates and their position in the reserve list for the various categories and specifically informed that the candidates in the reserve list will be considered for allotment from the respective categories against the vacancies caused due to any of the following reasons:

(i) Non-joining duty of selected candidates

(ii) Selected candidates who joined duty but left thereafter

(iii) Cancellation of Provisional selection of the selected candidates for any reason.

Importantly, it has been informed:

‘The Reserve List is valid till the drawal of the next selection list for this post by the Commission.’ https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

11. Both petitioners have undergone the due process of selection and have been informed of being placed in the reserve list. Both suffered no disqualification whatsoever. For both of them to expect that they would be appointed in proper turn as and when vacancies arise is but legitimate expectation. To be so appointed is their vested right. Whileso, in the humble opinion of this Bench, it would not be open to the Committee for Selection and Appointment of District Judges (Entry Level) and Civil judges Committee of this Court to disentitle petitioners by informing that vacancy which arose owing to a candidate stepping out of office should be pooled in for consideration in the proposed selection process. To repeat, in publishing the register number of candidates selected provisionally it has been informed that the reserve list would be valid till the drawal of next selection list for the post. A Division Bench of this Court in, The Secretary, Tamilnadu Public Service Commission v. R. Nagappan (2008- 3-LW-222) held:

“12. Though 10(a)(i) provides for allotment from reserve list for the vacancy in the place of those who have not joined duty, it cannot be strictly interpreted so as to exclude resultant vacancies caused due to candidates joined and subsequently left/resigned. The very purpose of Subordinate Service Rules is to sub-serve the interest of the public and the process of selection. No doubt a candidate has indefeasible right to be appointed for the post, but when the Writ Petitioners have been placed in the reserve list, it is a fallacy to argue that they cannot be appointed in the resultant vacancies. We are of the view that if such interpretation is to be adopted, the expression “such reserve list will be in force…. until the drawal of next selected list by the commission”, would defeat the intention of the Legislature. We are of the view that a meaningful interpretation of rule 10(a)(i) would sub-serve the interest of the public. In fact, having noticed the anomaly, the Government has issued amendment to rule 2 of Part I and Rules 10(a)(i)(i) and 22(d) under Part II of the General Rules for the Tamil Nadu State and Subordinate Services to the effect that “the reserve list shall be operated even against the vacancies caused due to the fact that the candidates have joined duty but left thereafter while the reserve list is in force…..”

Applicable Rule 2(15-A) of the Tamil Nadu State and Subordinate Service Rules (corresponding to Sec. 3u of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016) read:

“15-A “Reserve List” Reserve list shall mean a list which is prepared so as to contain not less than 25% of the candidates of https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

each reservation group including General Turn in the regular list and shall in force until the regular list is drawn up subsequently.”

12. Following the rationale of the judgment of this Court in The Secretary, Tamilnadu Public Service Commission v. R. Nagappan (2008-

3-LW-222), this Court holds that petitioner in W.P. No. 5629 of 2018 is entitled to appointment against the vacancy that had arisen on the resignation of Miss sujatha.K and petitioner in W.P. No. 25778 of 2015 would be entitled for consideration of appointment should vacancy in his category of eligibility arise before the drawing up of the subsequent regular list.”

The Division Bench in the above case was dealing with appointments based on

the list forwarded by the Tamil Nadu Public Service Commission, wherein the

relevant law contained provisions for “Reserve List”, which is not the case

here. Therefore, the judgment is not applicable to the present facts of the case.

19 (b). Judicial Pronouncements.

(i)State v. Umesh Kumar, [(2020) 10 SCC 448 : (2021) 1 SCC

(L&S)15 : 2020 SCC OnLine SC 810], in which, the supreme court observed

as under:

“19.The real issue, however, is whether the respondents were entitled to a writ of mandamus. This would depend on whether they have a vested right of appointment. Clearly the answer to this must be in the negative.”

(ii)Andhra Pradesh Public Service Commission Vs Kota

Lingeshwara Rao and others, [2019 SCC OnLine SC 1684], in which, the

supreme court observed as under:

https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

“9.As discussed above, after the amendment of Rule 6, the system of a waiting list remaining in force for a period of one year has been done away with. The Rule also makes it clear that the fallout vacancies, if any, due to relinquishment and non-joining etc. of the selected candidates shall be notified in the next recruitment. Hence, the Commission does not have the power to invite the next selected candidate if the last selected candidate does not opt to join the post, and must publish the vacant post in the next recruitment only. In view of the same, Respondent No. 1 being a non-selected candidate, cannot urge the Commission to select him based on the unamended Rule 6 of the APPSC Rules. He is bound by the amended Rule 6 of the APPSC Rules, inasmuch as Rule 6 was amended on 22.02.1997.

10.In view of the specific mandate of the amended Rule 6 of the APPSC Rules, in our considered opinion, the High Court was not justified in granting relief in favour of Respondent No. 1 ignoring amended Rule 6. Both the Rules i.e. Rule 6 (amended) and Rule 7 have to be read harmoniously. Rule 7 will sub-serve the intention of the amended Rule 6 of the APPSC Rules, since it specifically mentions that selection of a new candidate, after relinquishment of a post by another candidate, shall be done in accordance with the rules, which would mean the rules in force at that time. Furthermore, it has also been brought to our notice that the Commission deleted Rule 7 by G.P. Ms. No. 139 on 28.07.2016, having found that the said rule, to a certain extent, was creating confusion in the selection process.

11.Be that as it may, since Respondent No. 1 has no right to claim selection as per the APPSC Rules, no relief could have been granted to him. Hence, the appeal is allowed. The impugned judgment of the High Court stands set aside.”

(iii) Kulwinder Pal Singh v. State of Punjab, [(2016) 6 SCC 532 :

(2016) 2 SCC (L&S) 102 : 2016 SCC OnLine SC 507], in which, the

supreme court held as under:

“10.It is fairly well settled that merely because the name of a candidate finds place in the select list, it would not give him indefeasible right to get an appointment as well. The name of a candidate may appear in the merit list but he has no indefeasible right to an appointment (vide Food Corporation of India v. Bhanu Lodh [Food Corporation of India v. Bhanu Lodh, (2005) 3 SCC 618 : 2005 SCC (L&S) 433] , All India SC & ST Employees' Assn. v. A. Arthur Jeen [All India SC & ST https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

Employees' Assn. v. A. Arthur Jeen, (2001) 6 SCC 380 : (2007) 2 SCC (L&S) 362] and UPSC v. Gaurav Dwivedi [UPSC v. Gaurav Dwivedi, (1999) 5 SCC 180 : 1999 SCC (L&S) 982].”

(iv)In Punjab SEB v. Malkiat Singh [Punjab SEB v. Malkiat Singh,

[(2005) 9 SCC 22 : 2006 SCC (L&S) 235], the Apex Court held that “the

mere inclusion of candidates in a selection list does not confer upon them a

vested right to appointment”. The relevant passage of the said decision reads

as follows:

“4. … the High Court [Malkiat Singh v. Punjab SEB, 1999 SCC OnLine P&H 75 : ILR (1999) 2 P&H 329] committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India [Shankarsan Dash v. Union of India, (1991) 3 SCC 47 : 1991 SCC (L&S) 800] which reads : (SCC pp. 50-51) ‘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 the 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. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 :

https://www.mhc.tn.gov.in/judis 1973 SCC (L&S) 488] , Neelima Shangla v. State of

WP No. 8430 of 2020

Haryana [Neelima Shangla v. State of Haryana, (1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jatinder Kumar v. State of Punjab [Jatinder Kumar v. State of Punjab, (1985) 1 SCC 122 : 1985 SCC (L&S) 174] .”

(v) State of Orissa v. Rajkishore Nanda, [(2010) 6 SCC 777 : (2010) 2

SCC (L&S) 313 : 2010 SCC OnLine SC 652], wherein, the supreme court

held as follows:

“14.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 the 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.

15.A Constitution Bench of this Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95 : AIR 1991 SC 1612] held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of the candidate's name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. (See also Asha Kaul v. State of J&K [(1993) 2 SCC 573 : 1993 SCC (L&S) 637 : (1993) 24 ATC 576], Union of India v. S.S. Uppal [(1996) 2 SCC 168 : 1996 SCC (L&S) 438 : (1996) 32 ATC 668 : AIR 1996 SC 2340] , Bihar Public Service Commission v. State of Bihar [(1997) 3 SCC 198 : 1997 SCC (L&S) 775 : AIR 1997 SC 2280] , Simanchal Panda v. State of Orissa [(2002) 2 SCC 669 : 2002 SCC (L&S) 369] , Punjab SEB v. Malkiat Singh [(2005) 9 SCC 22 : 2006 SCC (L&S) 235] , Union of India v. Kali Dass Batish [(2006) 1 SCC 779 : 2006 SCC (L&S) 225 : AIR 2006 SC 789], Divisional Forest Officer v. M. Ramalinga Reddy [(2007) 9 SCC 286 : (2007) 2 SCC (L&S) 410 : AIR 2007 SC 2226] , Subha B. Nair v. State of Kerala [(2008) 7 SCC 210 : (2008) 2 SCC (L&S) 409] , Mukul Saikia v. State of Assam [(2009) 1 SCC 386 : (2009) 1 SCC (L&S) 186 : AIR 2009 SC 747] and S.S. Balu v. State of Kerala[(2009) 2 SCC 479 :

(2009) 1 SCC (L&S) 388] .)

16.A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. It is the settled legal proposition that no https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

relief can be granted to the candidate if he approaches the court after the expiry of the select list. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the court at a belated stage. (Vide J. Ashok Kumar v. State of A.P. [(1996) 3 SCC 320 : 1996 SCC (L&S) 707] , State of Bihar v. Mohd. Kalimuddin [(1996) 2 SCC 7 : 1996 SCC (L&S) 389 : (1996) 32 ATC 821 : AIR 1996 SC 1145] , State of U.P. v. Harish Chandra [(1996) 9 SCC 309 : 1996 SCC (L&S) 1240 : AIR 1996 SC 2173] , Sushma Suri v. Govt. of NCT of Delhi [(1999) 1 SCC 330 : 1999 SCC (L&S) 208] , State of U.P. v. Ram Swarup Saroj [(2000) 3 SCC 699] , K. Thulaseedharan v. Kerala State Public Service Commission[(2007) 6 SCC 190 : (2007) 2 SCC (L&S) 427] , Deepa Keyes v. Kerala SEB [(2007) 6 SCC 194 : (2007) 2 SCC (L&S) 430] and Subha B. Nair[(2008) 7 SCC 210 : (2008) 2 SCC (L&S) 409] .)

17.The instant case is required to be examined in view of the aforesaid settled legal proposition. The 1985 Rules provide for determining the number of vacancies and holding competitive examination ordinarily once in a year. The select list prepared so also is valid for one year. In the instant case, 15 vacancies were advertised with a clear stipulation that the number of vacancies may increase. The authorities had taken a decision to fill up 33 vacancies, thus, a select list of 66 persons was prepared. It is also evident from the record that some more appointments had been made over and above the 33 determined vacancies. Thus, once the selection process in respect of number of vacancies so determined came to an end, it is no more open to offer appointment to persons from the unexhausted list.”

(vi)Raj Rishi Mehra v. State of Punjab, (2013) 12 SCC 243 : (2013) 3

SCC (L&S) 73 : 2013 SCC OnLine SC 730, wherein, it was held by the

supreme court as under:

“14. It is true that in response to the advertisement issued in 2007, the State Government and the High Court made appointments from the waiting list against the posts which were made available by dereserving the unfilled posts of reserved categories but that decision cannot be cited as a binding precedent because the rules regulating the recruitment do not impose a duty on the appointing authority to make appointment from the waiting list. That apart, what is of immense significance is that the High https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

Court has taken a conscious decision not to entertain the request made by the State Government for filling up the unfilled reserved posts by appointing the candidates of general category because fresh advertisement had already been issued.

15. The question whether the candidates whose names are included in the waiting list are entitled to be appointed against the unfilled posts as of right is no longer res integra and must be answered in negative in view of the judgments of this Court in Union of India v. Ishwar Singh Khatri [1992 Supp (3) SCC 84 : 1992 SCC (L&S) 999 : (1992) 21 ATC 851] , Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat [Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat, 1994 Supp (2) SCC 591 : 1994 SCC (L&S) 1159 : (1994) 28 ATC 78] , State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986 [(1994) 1 SCC 126 : 1994 SCC (L&S) 274 : (1994) 26 ATC 500] , Prem Singh v. Haryana SEB [(1996) 4 SCC 319 : 1996 SCC (L&S) 934] , Ashok Kumar v. Banking Service Recruitment Board [(1996) 1 SCC 283 : 1996 SCC (L&S) 298 : (1996) 32 ATC 235] , Surinder Singh v. State of Punjab [(1997) 8 SCC 488 : 1998 SCC (L&S) 65] , Madan Lal v. State of J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712 : (1995) 29 ATC 603] , Kamlesh Kumar Sharma v. Yogesh Kumar Gupta [(1998) 3 SCC 45 : 1998 SCC (L&S) 720] , State of J&K v. Sanjeev Kumar [(2005) 4 SCC 148 : 2005 SCC (L&S) 447] , State of U.P.v. Rajkumar Sharma [(2006) 3 SCC 330 : 2006 SCC (L&S) 565] , Ram Avtar Patwari v. State of Haryana [(2007) 10 SCC 94 : (2008) 1 SCC (L&S) 15] and Rakhi Ray v. High Court of Delhi [Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637 : (2010) 1 SCC (L&S) 652] .

18.In State of Punjab v. Raghbir Chand Sharma [(2002) 1 SCC 113 : 2002 SCC (L&S) 104] a two-Judge Bench considered the questions as to when the recruitment process can be said to have come to an end and whether the select list can be operated qua the posts/vacancies which become available due to resignation of the existing incumbent and answered the same in negative by making the following observations:

(SCC p. 115, para 4) “4. … With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and, at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently. The circular order dated 22-3-1957, in our view, relates to select panels prepared by the Public Service Commission and not a https://www.mhc.tn.gov.in/judis panel of the nature under consideration. That apart, even as

WP No. 8430 of 2020

per the circular orders as also the decision relied upon for the first respondent, no claim can be asserted and countenanced for appointment after the expiry of six months. We find no rhyme or reason for such a claim to be enforced before courts, leave alone there being any legally protected right in the first respondent to get appointed to any vacancy arising subsequently, when somebody else was appointed by the process of promotion taking into account his experience and needs as well as administrative exigencies.”

20.In view of the abovenoted legal position, the decision taken by the High Court not to enter the petitioners' name in the register to facilitate their appointment against the dereserved posts or the posts vacated by the general category candidates cannot be faulted, more so because the State Government had already approved fresh recruitment and the Commission issued advertisement for 71 posts including 6 reserved category posts. In the result, the writ petitions are dismissed.”

(vii).State of Haryana v. Subash Chander Marwaha, [(1974) 3 SCC

220 : 1973 SCC (L&S) 488 at page 226], in which, the supreme court held as

follows:

“11.It must be remembered that the petition is for a mandamus.

This Court has pointed out in Dr Rai Shivendra Bahadur v. Governing Body of the Nalanda College [AIR 1962 SC 1210 : 1962 Supp (2) SCR 144 : (1962) 2 SCJ 208 : (1962) 1 Lab LJ 247 : (1962) 4 FIR 507.] that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived.” The judgments above referred clearly laydown that upon an appointment order

being issued, the select list is exhausted and just because a person is named in

the select list, he does not get an indefeasible right to be appointed.

https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

20. Conclusion.

This court, for all the reasons stated above, comes to an irresistible

conclusion that the selection list upon issuance of the appointment orders

stood exhausted. Mere inclusion in the selection list which in the present case

is neither a waiting list or a reserve list, would not create any indefeasible right

in favour of the petitioner to directly seek appointment contrary to the

provisions and hence, the decision of the selection committee to invite

applications afresh is in order. The object of fair play and equity encompasses

with it to provide an opportunity to similarly placed persons to apply for a

vacant post, which cannot be shunted by appointing people from the exhausted

Selection List. Further, it is to be noted that during the pendency of the writ

petition, the new selection process to fill up the vacant posts was completed by

the Committee and recommendations have already been sent to the

government for consideration. Therefore, the writ petition fails.

21. In the result, this writ petition is dismissed. The Government is at

liberty to appoint any candidate from the selection list without any further

delay. There will be no order as to costs. Consequently, connected

https://www.mhc.tn.gov.in/judis

WP No. 8430 of 2020

miscellaneous petition is closed.

                                                                     29.10.2021

                  Index           : Yes/No
                  Internet        : Yes/No
                  rsh


                  To
                  1. The Chief Secretary
                     Government of Puducherry
                     Puducherry

                  2. The Secretary (Housing)
                    Government of Puducherry
                    Puducherry

                  3. The Nodal Officer cum Chief Town Planner
                    Town and Country Planning Department
                    Government of Puducherry
                    Puducherry




https://www.mhc.tn.gov.in/judis



                                        WP No. 8430 of 2020

                                  R. MAHADEVAN, J




                                                       rsh




                                   Pre-delivery Order in
                                  WP No. 8430 of 2020




                                             29.10.2021




https://www.mhc.tn.gov.in/judis