Judgment:
Dr. B. K. Sinha, Memebr (A):
1. The short issue involved in this case is that whether the candidates who had appeared in CSE, 2011 have a right to seek selection in form of successive supplementary lists to the point that all the vacancies advertised are exhausted.
2. The facts of the case, briefly put, are that the applicants (6 in number) had admittedly appeared in the CSE, 2011. Further, admittedly a total number of 1001 vacancies were advertised on the basis of the CSE Rules. The Union Public Service Commission (hereinafter referred to as œUPSC?) declared the result in the first instance in respect of 910 candidates including 420 from General, 255 from OBC, 157 from SC and 78 from ST categories. This list included 33 PH candidates. This list also included 91 candidates [72 from OBC, 12 from SC and 07 from ST of reserved categories who have qualified on General Merit (hereinafter referred to GM)], who did not avail any concession/relaxation admissible to the reserved categories candidates. Out of these, one of the GM candidates from OBC category was assigned to general category as he had not submitted his caste certificate thereby reducing the list of such GM candidates to 90. It is the contention of the applicants that every year some of the candidates selected do not join either on account of the fact that they are already in some Service and had simply been seeking better Service or for the reasons of medical unfitness or otherwise. Normally, the deficit is made up from the reserved list prepared for the General, OBC, SC and ST categories candidates. The UPSC was requisitioned to provide reserve list of CSE 2011 containing 89 candidates (out of 91 candidates in the original GM list) as 2 OBC candidates could not be allocated any Service due to limited service preferences. Out of these, the candidates who were offered Services, 74 candidates were appointed by May, 2011. Another 15 names were also sent from another reserve list in May, 2013. The respondents have operated both the reserve lists (74+15=89). The case of the applicants is that they are just below 91 candidates in the original GM list as detailed below:-
Name Category Cut off Candidates Marks CSE Year
Edison Singh OBC 1056 1054 2011 Anand Kumar OBC 1056 1055 2011 Shubhakra K ST 1009 1009 2011 Talapala Bhargav Ram ST 1009 1002 2011 Tanay Rana General 1077 1074 2011 Oneel Shukla General 1077 1074 2011 3. The applicants have submitted that they are only marginally below the cut off marks and there are still 37 vacancies. If these vacancies were to be offered to them, they are likely to be appointed.
4. The applicants have adopted the following grounds in support of their claim:-
The selection does not get competed till all the service allocations are done. In the present instance, candidatures of more than 38 candidates have been cancelled before any service allocation is done and there are more than 38 vacancies. Therefore, it would be an act of patent injustice to the applicants who are just on the verge of border line.
The applicants have field upon the cases decided by the Honble Supreme Court which include Surinder Singh and Others versus State of Punjab and Another [1997 (8) SCC 488]; Mukul Saikia versus State of Assam [2009 (1) SCC 386] and Manoj Manu and Another versus Union of India [CA No. 6707 of 2013] to hold that the waiting list is used to fill up the notified vacancies where selected candidates do not join and that the UPSC is duty bound to provide a list of candidates on requisition by the DoPandT.
A substantial number of vacancies, mostly less preferred services, are remained unfilled on account of cancellation of candidatures and the less preferred Cadres are facing shortage of officers. A particular instance of Defence State Service has been cited where the situation has become alarming on account of shortage of officers.The learned counsel for the applicants submitted that there was a prolonged correspondence between the UPSC and the DoPandT over this issue. However, no requisition could be filed by the DoPandT on account of the reluctance exhibited by the UPSC.
That State is looser on account of the fact that where the vacancies exist and persons of competence, who are marginally below the selected candidates, are present, carry over in such a cases involves a huge expenditure on part of the respondents and denial to candidates, who are otherwise gainfully employed.
Apart from the above judgments, the applicants have relied upon the following judgments:-
CCSD Versus Minister for the Civil Service [1984(3) AII.ER 935];
F.C.I. versus Kamdhenu Cattle Fee Industries [1993 (2) SCC 71];
Ramana Dayaram Shetty Versus International Airport [1079 AIR 1628, 1979 SCR (3) 1014]; and
Kasturi Lal Lakshmi Reddy versus State of Jammu and Kashmir [1980 AIR 1992, 1980 SCR (3) 1338].
5. The respondent no.2 has filed a counter affidavit wherein, after having stated various provisions of CSE, 2011, they have drawn attention of this Tribunal to Rule 20 of the CSE, 2011 that mere selection in Civil Services Examination confers no right to appointment unless the Government is satisfied after such enquiry as may be considered necessary that only candidates of suitable character and antecedents in all respects are to be appointed to the Service. Rule 21 of the Rules ibid further stipulates that the candidates should have a mental and bodily health in order to be appointed. The respondent no.2 further submitted that it is an admitted fact that against 1001 vacancies advertised, a total number of 910 candidates were recommended including 420 from General category, 255-OBC, 157-SC and 78-ST including 33 PH candidates. There are 91 candidates placed in the reserved categories including 72-OBC and 12-SC and 07-ST, who had qualified on general merit without availing any concession/relaxation admissible to the reserved category candidates.
6. Of these one of the candidates namely one Ajay Katesaria (rank 28) had been converted into general category candidate by UPSC on account of the fact that he had failed to submit the OBC certificate in the desired format and not availed any relaxation available to this category. Thereby the list of GM candidates reduced to 90 candidates and the list of general category candidates increased by one candidate to 421. However, since the said Ajay Katesaria had been originally recommended in the list of OBC candidates with the status of GM candidate resulting shortage of OBC candidates was made up with the requisition of one OBC category from the reserved list. This is how the UPSC was requisitioned to provide reserve list of CSE-2011 containing 89 candidates (74 General, 13 OBC and 1 SC) from the consolidated in place of 91 candidates. The respondents have submitted that the applicants were not recommended by UPSC for appointment due to their low merit. The role of the respondent no.2 is confined to allocation of services to the candidates declared successful and whose dossiers have been sent by the UPSC equal to the number of vacancies projected by various CCS to UPSC for filling through CSE, the allocation of services is made on the basis of preferences indicated by them for services, medical status and availability of number of vacancies in their categories by their turn. On the other hand, the allocation of service to the lower candidates is made on the basis of number of candidates allocated higher services who are either not willing to join or whose candidatures have been rejected on the basis of one ground or the other thereby creating cascading effect. The respondent no.2 forwards the dossiers to the different CCS for this purpose.7. The principal ground adopted by the respondent no.2 is that if the process of service allocation of a CSE year takes more than two years and there is a difference in date of joining in services by different candidates and thereby attracting issues of fixation of seniority, pay and promotion etc. These issues have continued to pan from the CSE 2005 involving the Government in endless litigation. Therefore, if the plea of the applicants were to be accepted in principle that the recruitment is complete only when all vacancies have been exhausted, it would throw the administration out of gear and recruitment process will have been rendered unending. Thus, it is not possible to concede a third list as by an extension of this logic, the same would extend to 4th, 5th and 6th list. This would lead to administrative chaos and anarchy. The learned counsel for the respondents further submitted that the matter is pending before the Honble Supreme Court vide SLP No. 2545/2011 filed by Shri Anshoo Pandey and Others versus Union of India. It was strongly submitted that no requisition has been filed by the respondent no.2 by way of third list. It was further submitted that the respondent no.2 is look after the recruitment to 24 services through CSE including IAS, IPS, IFS and Central Services Group A and B. Hence, a line has to be drawn somewhere.
8. The respondent no.1 has filed a separate counter affidavit stating that the CSEs are conducted under CSE Rules framed each for that particular year of recruitment. While the mode of selection has been provided under Rule 16 (4) for CSE, 2011, Rule 16 (5) of the Rules ibid further provides that in case of shortfall, the Government may forward a requisition to the Commission requiring it to recommend from the reserved list in order of merit the same number of candidates as requisitioned for the purpose of filling up of unfilled vacancies in each category. The learned counsel for the respondent no.1 has strongly submitted that the term vacancies still remained to be filled up is purely in the context of Rule 16 (4) and does not exceed beyond. The learned counsel for the respondent no.1 has further submitted that drawing from a list beyond what has been permitted under Rule 16 (5) would imply maintenance of a wait list for which there is no provision. This again would have a cascading effect because candidates from the wait list may also decline to join the services allocated to them thereby not only complicating the process but involving the parties into prolonged and debilitating litigation.
9. A common rejoinder has been filed on behalf of the applicants by and large reiterating the points raised in the pleadings. Admittedly, there were 37 vacancies which had not been filled up. Initially, the DOPandT had shown inclination to requisition a third list as a lot of money and efforts have been devoted to the selection process keeping in view the shortage of officers particularly in the less preferred cadre. The applicants have further submitted that this effort had to be given up in view of the obdurate attitude of the respondent no.1. Thereby, in this respect, the respondent no.2 is pitted against respondent and 1 and a stance by the applicants. The rejoinder application further rejects the plea of delusion of quality as the applicants are just below the selected candidates and there is a matter of only few marks that separate the two. Rule 16 (1) of the CSE, 2011 requires respondent no.1 to fix qualifying standards for preparation of merit list and is empowered also to further lower the same. The respondent no.1 has already fixed the qualifying standards and their prayers are confined to the exhaustion of the merit list. The learned counsel for the applicants have also argued that CSE Rules do not provide for carrying forward of vacancies and hence the respondents are legally bound to continue till all the vacancies advertized have been exhausted. The applicants have relied upon the cases of Manoj Manu and Another versus Union of India and Others [Civil Appeal No. 6707/2013] and Gujarat State Dy. XEN Assn. versus State of Gujarat [1994 SCC Supl. (2) 591], which goes into the issue of waiting list.
10. The issue to be decided is purely a legal one and has already been spelt out in the opening paragraph of this order. We have also detailed the arguments advanced by the rival parties. While the applicants have argued that the CSE, 2011 Rules make it incumbent upon the respondents to carry forward a process of requisitioning additional list till all vacancies are exhausted, the respondents have denied stating that the process of requisitioning does not extend beyond the second list as provided under Rule 16 (5) of the Rules. They have also pleaded that where such a thing were to be done, it would make the process of recruitment far more complicated as compared to what it already is and almost a never ending task.
11. We take up the legal issue first. The rule position has already been dealt with in earlier part of the order. However, for better clarity, Rules 16(1) to 16 (5) of CSE Rules, 2011 are being extracted as hereunder:-
16 (1) After interview, the candidates will be arranged by the Commission in the order of merit as disclosed by the aggregate marks finally awarded to each candidate in the Main Examination. Thereafter, the Commission shall, for the purpose of recommending candidates against unreserved vacancies, fix a qualifying mark (hereinafter referred to as general qualifying standard) with reference to the number of unreserved vacancies to be filled up on the basis of the Main Examination. For the purpose of recommending reserved category candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes against reserved vacancies, the Commission may relax the general qualifying standard with reference to number of reserved vacancies to be filled up in each of these categories on the basis of the Main Examination.
Provided that the candidates belonging to the Scheduled Castes, Scheduled Tribes and the Other Backward Classes who have not availed themselves of any of the concessions or relaxations in the eligibility or the selection criteria, at any stage of the examination and who after taking into account the general qualifying standards are found fit for recommendation by the Commission shall not be recommended against the vacancies reserved for Scheduled Castes, Scheduled Tribes and the Other Backward Classes.
(2) While making service allocation, the candidates belonging to the Scheduled Castes, the Scheduled Tribes or Other Backward Classes recommended against unreserved vacancies may be adjusted against reserved vacancies by the Govt. If by this process they get a service of higher choice in the order of their preference.
(3) The Commission may further lower the qualifying standards to take care of any shortfall of candidates for appointment against unreserved vacancies and any surplus of candidates against reserved vacancies arising out of the provisions of this rule, the Commission may make the recommendations in the manner prescribed in sub-rules (4) and (5).
(4) While recommending the candidates, the Commission shall, in the first instance, take into account the total number of vacancies in all categories. This total number of recommended candidates shall be reduced by the number of candidates belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes who acquire the merit at or above the fixed general qualifying standard without availing themselves of any concession or relaxation in the eligibility or selection criteria in terms of the proviso to sub-rule (1). Along with this list of recommended candidates, the Commission shall also declare a consolidated reserve list of candidates which will include candidates from general and reserved categories ranking in order of merit below the last recommended candidate under each category. The number of candidates in each of these categories will be equal to the number of reserved category candidates who were included in the first list without availing of any relaxation or concession in eligibility or selection criteria as per proviso to sub-rule (1). Amongst the reserved categories, the number of candidates from each of the Scheduled Caste, the Scheduled Tribe and Other Backward Class categories in the reserve list will be equal to the respective number of vacancies reduced initially in each category.
(5) The candidates recommended in terms of the provisions of sub-rule (4), shall be allocated by the Government to the services and where certain vacancies still remained to be filled up, the Government may forward a requisition to the Commission requiring it to recommend, in order of merit, from the reserve list, the same number of candidates as requisitioned for the purpose of filling up the unfilled vacancies in each category.
12. It is clear from Rule 16(2) that while making service allocation, the candidates belonging to SC, ST and OBC recommended against unreserved vacancies are to be adjusted against reserved vacancies by the Government if by this process they get a service of higher choice in the order of their preference. Rule 16 (3) gives the leverage to the Commission of further lowering the qualifying standards to take care of any shortfall of candidates for appointment against unreserved vacancies and any surplus of candidates against the reserved vacancies arising out of the provisions of these rules. After having taken these measures, the final recommendation is to be made in the manner prescribed under the Rules 16(4) and 16(5). The Rule 16(4) provides that while making the recommendation, the following methodology is to be adopted:-
The Commission is to take the total number of vacancies in all categories into account; The total of recommended candidates is to be reduced by such candidates belonging to SC, ST and OBC who have met the general qualifying conditions. These candidates, according to proviso to sub-rule (1), are to be reckoned as general category candidates and not to be recommended against vacancies reserved for their own categories;
The Commission will take recommendation in two manners. One will be a category-wise list while the other will be a consolidated reserve list of candidates including candidates from general reserved categories below the last candidate selected in each category. The number of candidates selected in this category will be equal to the respective number of vacancies reduced initially in each category.
Under Rule 16(5) even after having made allocation of services under Rule 16(4) and vacancies still remained to be filled up, the Government may requisition candidates from the reserved list. The Commission will provide the list of these candidates from the reserved list equal to the numbers for filling up the vacancies.
13. Two things clearly emerge from Rule 16(5) first that the Government is entitled to requisition from the reserved list in the case of shortfall of candidates not joining for one reason or the other; second that the Government is bound to recommend officers from the reserved list in the same numbers in order of merit for filling up of the vacancies in each category. The question remains that whether the Government is bound to requisition in repeated tranches to the point of exhaustion of the vacancies. Here in legal term the discretion has been left to the Government to file a requisition but that has only to be in respect of candidates to be drawn from the reserved list. Rule 16(5), however, does not speak of more than one requisition of the candidates to be filed to the point of exhaustion of the vacancies. Had it been so, the framers of the Rules would have clearly provided to that effect. To the contrary, what appears from Rule 15 is that the leverage given to the Government to requisition extends only to the reserved list.
14. In the instant case, we find that the reserve list has already been exhausted leaving behind 37 vacancies. Admittedly, if a second requisition is to be filed, the applicants would get accommodated. We have also taken a note of the fact that in the notings and otherwise, both in the office of respondent no.2 and in the Memoranda submitted by the applicants as also in the questions raised in the Lok Sabha, some reasons have been provided including that of shortage in the Cadres, particularly the less preferred Cadres. These officers having been interviewed and being marginally below those selected, there being no difference in merit amongst the two categories of officers and wastage of Government money in conducting fresh examination and selection as the grounds. However, here we are guided purely by the legal consideration. There is nothing in the structure of either Rule 16(4) or 16(5) to suggest that more than one list is to be requisitioned and all vacancies are to be exhausted. The first sentence of Rule 16(4) does talk of the total number of vacancies but it is qualified only by the second sentence that these vacancies are to be reduced by the candidates in the GM list.
15. We further take a note of the fact that the Government has provided the total number of vacancies that have remained unfilled from CSE-2005 to CSE-2010, which are extracted hereunder:-
S. No. Services 2005 2006
@ 2007 2008 2009 2010 Total unfilled %of Total vacancies [unfilled vacancies *100/ total vacancies]
1 2 3 4 5 6 7 8 9 10 01 IAS 0 0 0 0 0 0 0 0 02 IFS 0 0 0 0 0 0 0 0 03 IPS 0 0 0 0 0 0 0 0 04 IPandTAFS 0 0 0 0 0 0 0 0 05 IAandAS0 0 0 0 0 0 0 0 06 IRS (CandCE) 0 0 0 0 0 0 0 0 07 IDAS 0 1 0 0 0 0 1 0.75 08 IRS(IT) 0 0 0 0 0 0 0 0 09 IOFS 0 1 0 0 0 0 1 3.48 10 IPoS 1 0 0 0 0 0 1 1.66 11 ICAS 0 0 0 0 0 0 0 0 12 IRTS 0 0 0 0 0 0 0 0 13 IRAS 4 0 0 0 0 0 4 3.00 14 IRPS 2 0 0 0 0 0 2 1.85 15 RPF 4 3 0 0 0 0 7 12.5 16 IDES 0 1 2 0 0 0 3 4.76 17 ITS 0 2 1 0 0 0 3 2.97 18 IIS 0 8 8 6 0 3 25 55.55 19 ICLS 0 0 0 0 0 0 0 0 20 AFHQ 5 3 17 8 28 33 94 64.82 21 DANICS 4 8 1 5 0 2 20 26.31 22 DANIPS 1 1 0 14 5 6 27 36.48 23 PONDICS 0 2 0 0 6 0 8 61.53 24 PONDIPS 0 7 0 5 6 4 22 84.61 Total 21 37 29 38 45 48 218 4.70 @ Requisition of 1 candidate from CSE-2006 and 2 candidates from CSE-2010 is pending with UPSC
It is to be seen from the above Table that a substantial number of vacancies remained unfilled. It also remains a fact that the Government was in two minds regarding making requisition in respect of a third list. This is evident from the letter dated May, 2013 from the DOPandT to the Secretary, UPSC. However, the respondent no.1 was not amenable to the idea and, therefore, no requisition was filed by the respondent no.2.
16. We consider here that the relationship within the Government and the UPSC is of the principal and the agent. The Government is entitled to requisition a second list which the UPSC, as we have already held in earlier paragraphs, is duty bound to provide. However, requisitioning of further candidates from the reserved list is not provided in Rule 16(5) nor has a requisition to this effect to be made. To the contrary, the counter affidavit filed on behalf of the respondent no.1 clearly provides the practice that the terms vacancies still remained to be filled up is in the context of Rule 16(4) only and not for any other unfilled vacancies. We also take note of the submission of respondent no.1 that there is no practice of maintaining a wait list beyond the reserved list. To the contrary, the shortfall is added to the vacancy position of the following examination.
17. As per the cases relied upon by the applicants in the cases of CCSD Versus Minister for the Civil Service (supra), F.C.I. versus Kamdhenu Cattle Fee Industries (supra) Ramana Dayaram Shetty Versus International Airport (supra) and Kasturi Lal Lakshmi Reddy versus State of Jammu and Kashmir (supra), one finds that these cases relate to legitimate expectations, power of public authority to use its power for public good, adherence to Article 14 and the Government being the Welfare State must affirm to reasonableness etc. etc., which, in any case, are not denied. However, the main issue is that whether the Government can be compelled to take up something which is not ordained by the rules.
18. The applicants have also relied upon the counter affidavit filed on behalf of the respondent no.2 qua the case of Shri Anshoo Pandey and Others versus Union of India (supra). The affidavit clearly states that the service allocation is a chain process and is yet to be processed. It is not possible to fill up that vacancy for the same examination year as it would upset the whole chain process and it would be a never ending process. Not only this, the candidates would be shifting for training courses from one Service to another in pursuance of the new service allotment time and again.
19. Now we take up the case of Manoj Manu and Another versus Union of India (supra). Here, the facts of the case were that the appellants, who were Assistants in the Central Secretariat Service (CSS), appeared in Limited Departmental Competitive Examination for the next promotion to the post of Section Officers Grade in that service. In the year 2005, on the requisition sent for 184 general category posts by the DOPandT, the UPSC recommended 184 candidates in two lots 141 candidates and 43 candidates. Out of these, 6 candidates did not join. The DOPandT requisitioned 6 general category candidates against 6 general category vacancies while the UPSC recommended names of 3 candidates out of the reserved list maintained by it. The two appellants, who were next in the merit list had secured 305 marks, the same as secured by one Rajesh Kumar Yadav who had been recommended by the respondent no.2 in this case. Aggrieved by non-recommendation, the appellants Manoj Manu and another approached the Tribunal which dismissed their OA on the ground that the ACRs are also seen for determining the merit position of the candidates who had secured the same marks in the written test. The stand of the appellants was that since they had secured the same marks, not giving them appointment would be violative of Articles 14 and 16 of the Constitution. The Honble High Court of Delhi was chary to grant this relief on the ground that taking a different view would upset the policy or convention followed by the UPSC and will create ambiguity which may also lead to confusion. The Honble Supreme Court set aside the order of the Honble High Court holding as under:-
14. It is, thus, manifest that though a person whose name is included in the select list, does not acquire any right to be appointed. The Government may decide not to fill up all the vacancies for valid reasons. Such a decision on the part of the Government not to fill up the required/advertized vacancies should not be arbitrary or unreasonable but must be based on sound, rational and conscious application of mind. Once, it is found that the decision of the Government is based on some valid reason, the Court would not issue any Mandamus to Government to gill up the vacancies.
However, we find that there is basic difference between the facts of this case and that of the facts of the case under consideration. Here, no requisition has been filed. The legal position is also clear that Rule 16(5) does not talk of any requisition from the reserved list. As such, we do not find this judgment applicable to the facts of the case in hand.20. In another judgment relied upon by the applicants i.e. Gujarat State Dy. XEN Assn. versus State of Gujarat (supra), the Honble Supreme Court has held as under:-
8. Coming to the next issue, the first question is what is a waiting list?; can it be treated as a source of recruitment from which candidates may be drawn as and when necessary?; and lastly how long can it operate? These are some important questions which do arise as a result of direction issued by the High Court. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. How it should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent authority prepares a waiting list then it is in respect of those 10 seats only for which selection or competition was held. Reason for it is that whenever selection is held, except where it is for single post, it is normally held by taking into account not only the number of vacancies existing on the date when advertisement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selections are held regularly by the Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. He has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons.
However, again the facts in this case are dissimilar as the concept of wait list does not exist in the instant case. There is a reserve list and that is the end of it.
19. We also take a note of the fact that there are some practical difficulties that stand in the way of the supplementary requisition beyond the second list. We also take a note of unfilled vacancies and the averments made by the respondents that they are still grappling with the cases related to the year 2005 onwards.
20. We are firmly of the opinion that this is a practice which is time honoured and the UPSC has been practicing. The Honble Supreme Court in the case of Shankarsan Dash versus Union of India [1991(3) SCC 47] has 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. Subhash Chander Marwaha, (1974) 1 SCR 165: (AIR 1973 SC 2216), Miss Neelima Shangla v. State of Haryana, (1986) 4 SCC 268: (AIR 1987 SC 169), or Jitendra Kumar v. State of Punjab, (1985) 1SCR 899 : (AIR 1984 SC 1850).
This basic postulate has been reiterated in several other cases including the case of Food Corporation of India versus Bhanu Lodh and Others [2005 (3) SCC 618] and All India SC and ST Employees Association and Another versus A. Arthur Jeen and Others [ 2001 (6) SCC 380] wherein the Honble Supreme Court has held as under:-
10. Merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarsan Dash v. Union of India (1991) 3 SCC 47: (1991 AIR SCW 1583 : AIR 1991 SC 1612 : 1991 Lab IC 1460). Para 7 of the said judgment reads thus:-
"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. Subhash Chander Marwaha (1974) 3 SCC 220 : (AIR 1973 SC 2216 : 1974 Lab IC 1212); Neelima Shangla v. State of Haryana (1986) 4 SCC 268 : (AIR 1987 SC 169 : 1987 Lab IC 34) or Jatindra Kumar v. State of Punjab (1985) 1 SCC 122 : (AIR 1984 SC 1850)."
It follows from the above decisions that the selectee does not have a right to appointment merely because his name has appeared in the select list. However, this is subject to the test of arbitrariness and good reasons. The application of law would as held in the case of Director, SCTI for Medical Science and Technology and Anr. Versus M. Pushkaran [2008 (1) SCC 448] would depend upon the situation obtaining in each case. In this case, we clearly find that there is no mandatory provision for requisition beyond the reserved list and there is no concept of a wait list under CSE Rules, 2011. Moreover, the practical difficulties have already been enunciated. We take note of the submissions made by the learned counsels for the respondents that the Government is being burdened by a plethora of litigation arising from such claims based more upon the mercies and the indulgence of the courts rather than on legally enforceable set of rights. We are acutely conscious of the fact that litigation is a legitimate mode of redressal of grievances under law. There can be no shying away from it where denigration of some individual rights or otherwise is in process. However, we are also aware of the fact that where no such legally enforceable rights exist, a grant of mere claims in the form of legal rights would lead to an explosion in litigation. It is our considered opinion that in absence of such legal rights and in view of such clear cut difficulties pleaded by the respondents, the applicants have no case. The instant Original Application is, therefore, devoid of merit.
21. In the result, the instant Original Application fails and is accordingly dismissed leaving the parties to bear their own costs.