S.D. Shah, J.
1. This group of petitions is filed by various petitioners from number of districts for issuance of direction to the respective Panchayats to operate the select list for the post of Gram Sevak (Multipurpose) or Gram Sevak (Training & Visit), as the case may be, and to appoint them on such post pursuant to their selection and inclusion of their names in the select list duly prepared. They have also prayed for writ of Certiorari or any other appropriate writ or direction quashing and setting aside the resolution or circular issued by the State Government whereby it has directed the concerned Panchayat to hold fresh selection for the post of Gram Sevak (Multipurpose)/Gram Sevak (Training & Visit) and not to make any appointment to said posts based on existing select list.
xxx xxx xxx
4. Petition-wise position of respective Panchayat, number of vacancies, notification thereof, preparation of select list and actual appointment of candidates is stated hereunder in a tabular form:
___________________________________________________________________________________________
District SCA No. No. of Dt. of No. of Size of No. of
Peti- Adver- Notified Select persons
tioners tisement vacancies list appointed
___________________________________________________________________________________________
Arareli 1618/89 12 13-3-85 35 69 21
Kutch 1914/89 20 1-6-84 9(Multi- 118 62
purpose)
108 (T&V)
Mehsana 2233/89 31 5-4-85 36(Multi- 34(Multi- 34(Multi-
purpose) purpose) purpose)
+70 (T&V) +87 (T&V) +73 (T&V)
948/92 1 ' ' ' '
Dang 3464/91 1 1-9-84 3 (T&V) 12 7
Ahme-
dabad 5016/91 9 23-12-84 40 40 36
828/92 1 ' ' 36
Valsad 1367/91 10 December 35 66 3
1984
Kheda 3268/92 1 ' 38 98 44
' 3269/92 1 ' ' ' '
' 3270/92 1 ' ' ' '
5. From the aforesaid tabular details of the posts of Gram Sevaks (Multipurpose) and Gram Sevaks (Training & Visit) it would be clear that from 1983-85 for number of existing vacancies advertisements were issued by Dist. Panchayats for filling in such vacancies consistent with the statutory rules then prevalent. It could also be seen that in some of the districts the select list was prepared so as to commensurate with number of vacancies to be filled in while in number of other districts select-cum-waiting lists of larger size were prepared with the result that number of select/wait-listed candidates was higher than the number of notified vacancies. It is also pertinent to note that though the advertisements were issued between 1983-85 the select/wait-lists were belatedly prepared so as to consume time of 2/3 years. It is also pertinent to note that in case of 2/3 districts, Kutch, Dang and Kheda, number of persons appointed far exceeded the number of available/notified vacancies. It is also required to be noted that almost in all the districts select/wait lists of very large size were prepared so as to make the lists 2/3 times bigger in size than the number of notified/available vacancies. Since number of candidates whose names were included in the select/wait list were not offered appointment despite inclusion of their names in the select/wait list, it is the case of the petitioners that they are atleast entitled to be considered for appointment to the post of Gram Sevak. To add to these difficulties, the State Government vide its resolution, dated 22-12-1988 directed the Dist. Panchayats not to give an appointment from the select/wait list already prepared. Such circular is issued because of the notification issued by the Government on 5-5-1988 whereby in exercise of powers conferred by Section 323 read with Section 200 of Gujarat Panchayats Act, 1961 the Government of Gujarat enacted the Rules known as 'Gujarat Panchayat Service (Classification & Recruitment)(Amendment) Rules, 1988. By the said Rules entire cadre of Gram Sevak is re-organised so as now to consist of Gram Sevak (Training & Visit), Gram Sevak (Multipurpose) and Agrl. Assistants. These resolution and notification are also, therefore, challenged before this Court in this group of petitions, and it is submitted that the vacancies existing on the date of advertisement shall have to be filled in from amongst the candidates already selected and included in the select list. A wider submission is also made before this Court that unless the select/wait lists are fully exhausted the respondents should not be permitted to prepare any fresh select list for the posts of Gram Sevaks (Multipurpose & Training and Visit) and Agrl. Asstts. In fact, injunction to that effect is also prayed for in number of petitions.
6. In the aforesaid factual context, it would be necessary to set out the defence of the State Govt, and respective Panchayats as to why they have stopped operating the select list or as to why the persons whose names are included in the select/waitlist cannot be appointed to the cadre of Gram Sevak.
7. In all these petitions, the State of Gujarat has filed common affidavit-in-reply of Mr. A.A. Patel, Under-Secretary, State of Gujarat in Panchayat & Rural Housing Dept. and the gist of defence is: (i) that the petitions of this nature requiring the State Govt/Dist. Panchayat to operate out-dated select list of the year 1983-85 deserve to be dismissed as after preparation of old select/merit list cadre of Gram Sevak is re-constituted by amendment of statutory Rules in the year 1988 prescribing different qualifications and eligibility criteria for appointment, (ii) by mere inclusion of names in the select list the petitioners do not get any right of appointment, and at the most, on inclusion of their names in the select lists they can be said to have acquired eligibility criteria for appointment, (iii) correspondingly, in the absence of any right in favour of the persons whose names are included in the select list, there is no obligation on the State to give appointment from such select list/wait list, and therefore, under Article 226 of the Constitution of India no mandamus can be issued, (iv) in case of those District Panchayats where select lists of disproportionately larger size were prepared compared to notified/available vacancies, such select list should not be treated as operative or operated as number of notified vacancies were already filled in from amongst the selected candidates, and therefore, respective select list should be treated as one which has outlived its utility and has become inoperative, (v) all the select lists of which enforcement is sought by the petitioners are very stale, outdated, almost one decade old and any direction from this Court to operate such list would deny chance of even being considered to the fresh new blood for vacancies in the cadre of Gram Sevak, (vi) such select list prepared as back as 1983-85 in the context of statutory rules then prevailing should not be operated upon as on today the cadre of Gram Sevak has undergone a sea-change and persons who qualify and satisfy the requirement of present rules should only be considered for appointment.
8. The aforesaid defence is sought to be made good by reference to the history of formation of Panchayat Raj in the State of Gujarat from 1-4-1963 and as to how Gujarat Panchayat Services cane to be constituted. Since reference to the history of the cadre is pressed into service by Mr. R.M. Chhaya, learnerd A.G.P. and Mr. P.M. Raval, learned Addl. A.G. I shall now proceed to set out the history of cadre of Gram Sevak, and the way in which it has undergone sea-change on amendment of statutory rules, from time to time.
Cadre of Gram Sevak, its Constitution & re-Constitution:
9. Initially, recruitment to the cadre of Gram Sevak was governed by the Gujarat Panchayat Services (Classification & Recruitment) Rules, 1967 (hereinafter referred to as 'Rules of 1967'). The recruitment to the post of Gram Sevak was to be made by (i) nomination and (ii) by promotion of Talati-cum-Gram Panchayat Mantris in the ratio of 2:1. In order to be eligible for appointment by nomination a candidate shall possess (a) vernacular final pass with diploma of an Agrl. school or Marticulation/SSC examination passed. It is also stipulated that preference shall be given to candidate having higher qualifications/experience in the field of social service, knowledge of agricultural practice, background of village life and working knowledge of local language will be considered as additional qualification. It was also stipulated that those candidates who are called for selection will have to appear for qualifying written test at their own expenses. Recruitment examination for the post of Gram Sevak shall be conducted by the Dist. Panchayat Services Selection Committee in accordance with rules framed by the State Govt., in that behalf.
10. It is required to be noted that at the initial stage there was a separate cadre of Agrl. Asstt. and recruitment rules for this cadre were prescribed. Under the Rules Agrl. Asstts were categorised into Gr. I, II & III. Appointment to the post of Agrl. Asstt. Gr. Ill was to be made by direct recruitment from amongst the candidates who have successfully completed two years course in agriculature. Appointment to the post of Agrl. Asstt. Gr. I & II was to be made by promotion of persons from Gr. II & III respectively in order of seniority and merit.
11. In the year 1977-78, Dr. Benor's Scheme was sponsored by the World Bank for upliftment of agricultural produce in the State of Gujarat. In order to implement the scheme it was found necessary by the State Govt., that is should be implemented at the grass-root-level and tillers and farmers were required to be imparted knowledge of the said scheme. With this object in mind and for the best and expeditious implementation of Dr. Benor's Scheme the State Govt, abolished common cadre of Gram Sevak and two separate cadres, namely, Gram Sevak (Multipurpose) and Gram Sevak (Training & Visit) were created. It is because of such creation of new cadres, new Recruitment Rules were required to be framed and the State Govt., vide its notification dated 15-2-1980 inserted new Recruitment Rules known as 'Gujarat Panchayat Services (Classification & Recruitment)(19th Amendment) Rules, 1980'. Under the new Rules with effect from the date of publication of notification following two cadres of Gram Sevaks, i.e. (i) Gram Sevak (Multipurpose) and (ii) Gram Sevak (Training & Visit) are created. Under the said Rules, it is provided that appointment to the cadre of Gram Sevak (Training & Visit) shall be by nomination and by promotion in the ratio of 85:15. To be eligible for appointment by nomination a candidate should have atleast passed vernacular final examination with a diploma of Agrl. School conducted by the Agrl. University. It is also stipulated that the candidates who are called for selection shall have to appear for qualifying written test at their own expenses. Appointment by promotion to the said post shall be made from out of Talati-cww-Panchayat Mantris who have atleast passed the vernacular final examination and have experience of work as Talati-cum-Mantris in Gram or Nagar Panchayats atleast for five years.
12. It is also required to be noted that on creation of new cadre of Gram Sevaks (Multipurpose) & (Training & Visit) under Rules of 1980, the Rules relating to recruitment examination for Gram Sevaks were required to be deleted and new Rules were required to be introduced. The State of Gujarat accordingly enacted Recruitment Examination Rules in the year 1982, and Notification dated 3-3-1982 was published. Accordingly, the Gram Sevak (Panchayat Service) Recruitment (Exam.) Rules, 1982 were framed. Under the Rules of 1982 it is inter alia provided that the Gujarat Panchayat Service Selection Board constituted under Section 201 of Gujarat Panchayat Act, 1961 shall hold written examination for selecting candidates for recruitment to the post of Gram Sevak (Multipurpose) and Gram Sevak (Training & Visit) in the Panchayat Services. The Rules inter alia prescribed the syllabus for examination, fixation of date and place of examination, conduct of examination and declaration of result of examination. Rule 16 of the Rules also provides that there shall be oral interview for 10 marks from amongst candidates whose results have been declared under Rule 15. The Committee is also required to assign marks for oral interview of candidates. The Committee is also expected under Rule 19 to prepare a select list which shall cover up existing vacancies and future vacancies as notified by the District Panchayats. Rule 19 reads as under:
19. Publication of result of selected candidate: The Committee shall publish the select list on the Notice Board of the District Panchayat. The select list remain in force till the result of the next examination is published.
13. From the aforesaid provisions and Rules it is clear that a detailed procedure for conducting examination of eligible candidates for their selection is provided and a Committee is expected to prepare a select list covering the existing and future vacancies as notified by the District Panchayat. It also becomes clear that the said select list shall remain in force till the result of next examination is published.
14. It appears that under the Recruitment (Exam.) Rules, 1982 requisitions were sent by 15 Dist. Panchayats for recruitment to the posts of both Gram Sevak (Multipurpose) and Gram Sevak (Training & Visit). Accordingly, advertisements were also issued and eligible candidates were invited to compete for selection. It appears that select lists were accordingly prepared by respective Dist. Panchayats for both the cadres of Gram Sevaks, i.e. Gram Sevak (Multipurpose) and Gram Sevak (Training & Visit). Said select lists were prepared in the year 1983, 1984 or 1985. It is pertinent to note that the case of the State Govt., now before this Court is that in many districts requisitions were sent for larger number of posts than actually vacant posts and that unnecessarily unduly lengthy select lists were prepared. It is the case of the State Govt, that in some of the districts even the notified vacancies could not be filled up because of the economic measures resorted to by the State Govt., in the years of severe drought, and the select lists which are sought to be enforced in this group of petitions are admittedly prepared under Recruitment (Exam.) Rules, 1982 and are referrable to the vacancies which were then notified by the respective Dist. Panchayats. It is required to be notified that though the vacancies were notified as back as 1982-83, and though the examinations were conducted and interviews were held pursuant to public advertisement inordinately long period was consumed in preparation of select list, and even after preparation of select list number of vacancies were not filled up either because of measures of austerity adopted by the State Govt., or because of economy drive followed by respective Dist. Panchayats. It may be mentioned at this stage that since some of Dist. Panchayats have prepared very lengthy select lists despite non-availability of vacancies large number of candidates were appointed. A glaring illustration is provided by Banaskantha and Jamnagar Dist. Panchayats. In Banaskantha District Panchayat notified vacancies were 67 as against which select list of 224 candidates was prepared and 157 candidates came to be appointed. Similarly, in Jamnagar District 2 vacancies were notified as against which select list of 125 candidates was prepared and suprisingly 70 candidates were appointed. Excepting Sabarkantha Dist. in all the districts serious irregularities were committed both in preparation of select list as well as in appointment of candidates. It is really shocking to note that such a grossly disproportionate number of persons thus came to be irregularly appointed. Initially, blame for this must undoubtedly lay at the doors of respective Dist. Panchayats, but the State Govt., cannot be excused for its inefficient and total lack of supervision. When such large number of persons are appointed despite nonavailability of vacancies the State Govt., as well as the Development Commissioner should have risen from slumber and should have taken immediate action. At this stage, belatedly after ten years to complain to the Court that large number of persons were wrongly recruited in various Dist. Panchayats does not behave or befit ideal administration of the State Govt. However, in this group of petitions it is not necessary to dilate on this issue and it is simply noted that in large number of Dist. Panchayats grossly disproportionate irregular appointments were made on the posts of Gram Sevak (Multipurpose) and Gram Sevak (Training & Visit).
15. It is at this stage that when under the Recruitment (Exam.) Rules, 1982 different select lists were prepared by different Dist. Panchayats, and when some of them were fully implemented and/or were under process if being implemented the State Govt., issued notification, dated 5-5-1988 whereby it was pleased to amend Gujarat Panchayat Service (Classification & Recruitment) Rules, 1967 by framing the Rules known as 'Gujarat Panchayat Service (Classification & Recruitment)(Amendment) Rules, 1988'. By the Rules of 1988, the cadre of Gram Sevak is reconstituted so as to comprise (i) Gram Sevak (Multipurpose), (ii) Gram Sevak (Training & Visit) and (iii) Agrl. Asstt. Appointment to the post of Gram Sevak is now to be made by direct selection from candidates (a) who have Agrl. Diploma or obtained Rural Devp. Science Diploma from Krishishala of Gandhi Vidyapith, Vedachhi; or (b) have successfully completed two year-course in Agrl. at any Agrl. schools under the control of Agrl. University of the Guj. State; or (c) possess degree of Bachelor in Rural Studies (Agrl.) of the Saurashtra University; or (d) be an Agrl.Snatak of the Saraswati Gram Vidyapith, Samoda, Ganawada, Dist. Mehsana.
16. It is the case of the State Govt., mat because of this reconstitution of cadre of Gram Sevak and inclusion of cadre of Agrl. Asstt. in the cadre of Gram Sevak, and also because of prescription of different qualifications that the State Govt., has decided that the recruitment to the said cadres shall have to be made under the Rules of 1988. It is the case of the State Govt., that because of aforesaid Rules of 1988, the Rules relating to Gram Sevak (Multipurpose) and Gram Sevak (Training & Visit) and Agrl. Asstt. were totally deleted as these cadres stood abolished and new cadre of Gram Sevak was created. It is their case that since totally new cadre is now created under the Rules of 1988, the select lists which were prepared under Rules of 1982 could not be permitted to be operated, and accordingly, instructions were issued to respective Dist. Panchayats not to operate the select lists of Gram Sevaks which were prepared prior to 1988.
17. It is the further case of the State Govt., that since the cadre of Gram Sevak was reconstituted under Rules of 1988, once again necessity arose for amending the Recruitment (Exam.) Rules, and accordingly vide notification, dated 10-4-1992 new Recruitments (Exam.) Rules were framed and published which are known as 'Gram Sevak (Panchayat Service) Recruitment (Exam.) Rules, 1992'. Under these Rules it is, inter alia, stipulated that there shall be Gujarat Panchayat Services Selection Board under Section 210 of Gujarat Panchayats Act, 1961 which shall hold written examination for selecting candidates for recruitment to the post of Gram Sevak in the Panchayat Service. Said Rule, inter alia provide for syllabus of examination, date and place of examination, conduct of examination and declaration of result of examination. Rule 17 of Rules 1992 being relevant is reproduced hereunder:
17. Success in examination not to confer right:
Success in examination shall not by itself confer right to appointment. It shall be open to the appointing authority to pass over a cadidate if after such enquiries as considered necessary it is satisfied that the candidate is not suitable for panchayat service.
18. It is also pertinent to note that unlike Rules of 1982 there is no provision in these Rules that the list shall remain in force till the result of next examination is published though the aforesaid Rule 17 in no unmistakable terms reiterates the position of law propounded by the Supreme Court, namely, that success in the examination shall not by itself confer any right to an appointment. What weight should be given to this Rule 17 of Rules 1992 when juxtaposed with Rule 19 of Rules 1982 coupled with the fact that there is omission to make identical provision like Rule 19 in the Rules of 1992 shall have to be examined and the learned Advocates for the parties have placed reliance upon such legislative exercise.
19. It is in the context of legislative history of subordinate legislation, as stated hereinabove, Mr. P.M. Raval, learned Addl. A.G. and Mr. R.M. Chhaya, learned A.G.P. have very strenuously urged before this Court that the State Govt, has issued direction to respective Dist. Panchayats not to operate the select lists prepared under the Rules of 1982 as they have become in every sense of term defunct and inoperative. It is their further case that direction of any appointment of Gram Sevaks from such very old, stale and outdated lists would bring about frustration amongst fresh, new young aspirants for public employment, more so when uneducated jobless are unlimited and if they are denied consideration for employment Articles 14 & 16 of the Constitution would be violated.
20. On the other hand, M/s. Percy C. Kavina appearing for P.B. Majmudar and Y.N. Oza, M.R. Shah, V.N. Bhagodia, J.J. Yagnik, B.S. Mishra, G.A. Pandit, P.V. Hathi all appearing for petitioners strenuously urged before this Court that once number of vacancies are determined and notified by the respective Dist. Panchayats and when the select lists are prepared for filling up such vacancies from amongst the selected candidates a right is created for appointment. Such candidates are even otherwise eligible for being appointed on the vacancies notified, and if in the absence of cogent and justifiable reasons the vacancies are not filled up, the Court can by issuing mandamus direct the respondents to fill up the vacancies which were then notified from amongst the candidates then selected. The subsequent amendment of statutory Rules or framing of new Rules should not make any difference as right of being considered for then existing vacancies which has arisen by selection cannot be rendered nugatory, and therefore, also this Court has power to issue mandamus directing the respondents at least to fill up those vacancies which were then notified and for which the select lists are prepared. In order to make good this submission the learned Counsels have placed reliance on the decisions of the Division Bench of this Court in the case of Guj. State Civil Supplies Corporation Ltd. v. Dashrathlal L. Patel reported in 1993 (2) GLR 1676 and P. Mahendrcm v. State of Karnataka reported in : AIR1990SC405 . It is further submitted that there was specific stipulation in the Rules of 1982 that the select list shall remain in force till the result of next examination is published (Rule 19), and therefore, since no select list was prepared thereafter, the select list of 1982 for all purposes was required to be operated and the candidates who were selected were required to be appointed as against available vacancies. In the alternative, it is submitted that in any case the vacancies which were then notified pursuant to which the select lists were prepared and which were not filled in are atleast required to be filled in from amongst the selected candidates and that right cannot be denied even if Rules of 1988 are to have any effect, whatsoever.
21. Aforesaid rival submissions made by the learned Counsels appearing for the parties undoubtedly would require this Court to examine a large number of questions which can be framed as under:
(i) Whether a candiate whose name is included in the select list prepared pursuant to a valid process of selection under the statutory rules has any indefeasible right of being appointed to a post?
(ii) Has such candidate right of being considered for appointment to a post, other factors being equal?
(iii) What is the life of a select list? Is it co-extensive with exhaustion of available vacancies? Would it lapse or become inoperative if the vacancies are exhausted?
(iv) Whether the State authority has any power to cancel the select list already prepared or to make inoperative or ineffective a select list for any justifiable reason?
(v) What is the effect of amendment of statutory Rules, either modifying qualification or criteria of eligibility of a candidate for the vacancies then existing or vacancies which have accrued subsequently?
(vi) When statutory Rules are changed/amended so as to reconstitute the cadre, at the same time not making any substantial alteration in the educational qualification or eligibility criteria, whether the select list then prepared as per then existing rules can be directed to be operated atleast for the number of vacancies then existing and lying vacant?
(vii) What is the effect of amendment brought out by 1992 Rules about the life of select list when contrasted with or juxtaposed with the provision of Rule 19 of 1982 Rules which prescribe life of select list?
22. In the case of State of Haryana v. Subash Chander Marwaha reported in : (1973)IILLJ266SC the question arose before the Supreme Court when out of select list of 15 candidates, 7 were appointed as Subordinate Judges, while remaining persons from the select list were not appointed despite existence of vacancies. The persons who were selected and whose names were included in the select list but who were not offered any appointment thereupon filed the petition in the High Court of Punjab & Haryana for mandamus requiring the State to appoint them on such vacancies. It appears that there were 15 vacancies. Pursuant to the competetive examination, a list of 40 candidates, who obtained 45% or more marks in the examination was prepared. The State Govt., however, made 7 appointments only in the serial order of the list according to merit. Respondents who were ranking at SI. Nos. 8, 9 and 13 did not get an order of appointment although mere were vacancies and the reason given by the State Govt., was that it has decided that candidates getting less than 55% markes in the examination should not be appointed as Subordinate Judges in the interest of maintaining high standards of competence in Judicial Service. The case of the petitioners, therefore, was that though there were vacancies and their names were included in the select list, they were denied appointment and, therefore, they prayed for issuance of mandamus.
23. It was in the aforesaid fact situation while allowing the appeal preferred by the State of Punjab & Haryana and setting aside the order passed by the High Court, the Supreme Court observed that existence of vacancy does not 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 Govt., 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 Govt., while making the selection for appointment had departed from the ranking given in the list there may be a legitimate grievance on the ground that the State Govt., had departed from the merit. The only restraint put on the power of the Govt., to make appointments is that the Govt., shall not travel outside the list and that the Govt., shall not depart from the ranking given in the list.
24. As regards power of the Court to issue mandamus, relying upon its earlier decision in the case of Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College reported in : (1962)ILLJ247SC the Court held 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 Govt., to appoint all the 15 persons who are in the list it was held that there was no legal right in the petitioners to enforce its performance.
25. As regards power of the Govt., not to appoint a person from the select list, the Court observed that this is essentially a matter of administrative policy and if the State Govt, thought it fit that in the interest of judicial competence persons securing less than 55% of marks in the competitive examination should not be selected for appointment, it cannot be said that the Govt, has acted beyond its power. The factor which weighed with the State Govt, was found to be just, proper and reasonable and such exercise of power was not regarded as unreasonable or arbitrary.
26. Once again, in the case of Jatinder Kumar v. State of Punjab reported in : AIR1984SC1850 , the Court was called upon to decide the question as to whether a person selected by the Subordinate Service Selection Board for direct appointment to the post of Asstt. Sub-Inspector of Police has got an unfettered right to be appointed on the basis of the recommendation made by Selection Board. In the case before the Supreme Court initially requisition was for seven persons for the post of Asstt. Sub-Inspector of Police; in the course of time, such requisition was modified to 57 posts and lastly it came to be modified to 227 posts. The Subordinate Service Selection Board recommanded a panel of 144 candidates. However, in the meanwhile, the proposal for disbandment of the Punjab Armed Police Battalion and creation of additional post in the District was turned down by the Govt, and, therefore, anticipated 117 vacancies did not arise. Only 57 vacancies, therefore, existed, 9 of which were offered to the wards of deceased police officers. Remaining 48 posts were offered to the candidates recommended by the Board in order of merit. The remaining candidates were not appointed as there were no vacancies and such candidates moved the High Court under Article 226 of the Constitution of India. The High Court rejected the petition and aggrieved petitioners approached the Supreme Court.
27. The Supreme Court in the aforesaid fact situation observed that the selection by the Commission, however, is only a recommendation of the Commission and the final authority for appointment is the Govt.
28. In the case of Miss Neelima Shangla v. State of Haryana reported in : [1986]3SCR785 the appellant was the candidate for appointment to the post of Subordinate Judge in Haryana. Under the scheme of the Rules, the Public Service Commission was required to hold first a written test in subjects chosen by the High Court and next a viva voce test. Unless a candidate secures 45% of the marks in the written papers and 33% in the language paper, he will not be called for the viva voce test. All candidates securing 55% of the marks in the aggregate in the written and viva voce tests are considered as qualified for appointment. The appellant though secured 55% of the marks was not appointed as her name was not sent by the Public Service Commission to the Govt. The Supreme Court in such fact situation found that the Public Service Commission is not required to make any further selection from the qualified candidates and is, therefore, not expected to withhold the name of any qualified candidate. The duty of the Public Service Commission is to make available to the Govt., a complete list of qualified candidates arranged in order of merit. How should Govt., act is stated by the Supreme Court in the following words:
Thereafter the Govt. is to make the selection strictly in the order in which they have been placed by the Commission as a result of the examination. The names of the selected candidates are taken to be entered in the register maintained by the High Court strictly in that order and appointments made from the names entered in that register also strictly in the same order. It is, of course, open to the Govt. not to fill up all the vacancies for a valid reason. The Govt., and the High Court may, for example, decide that though 55% is the minimum qualifying mark, in the interest of higher standards, they would not appoint anyone who has obtained less than 60% of the marks.
The Court after making reference to the decision of the Supreme Court in the case of Subash Chander Marwah (supra) further observed as under:
However, as we said, the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates. There must be a conscious application of the mind of the Govt, and the High Court before the number of persons selected for appointment is restricted. Any other interpretation would make Rule 8 of Part D meaningless.
29. From the aforesaid observations, it becomes clear that simply because name of person is included in the select list, he does not acquire any right of being appointed on the post. Secondly, it is always open to the Govt, not to fill up all the vacancies for a valid reason. Such a decision should not be arbitrary and unreasonable but must be based on sound, rational and conscious application of mind. If for reasons which are reasonable and rational, it is decided not to fill up the vacancies, Govt, cannot be compelled by mandamus to fill up the vacanices. It appears that the matter was required to be examined by Constitutional Bench of the Supreme Court as Division Bench of the Supreme Court referred the matters for examining the question whether a candidate whose name appears in the merit list on the basis of a competitive examination acquires indefeasible right of appointment as a Govt, servant if a vacancy exists.
30. In the case of Shankarsan Dash v. Union of India reported in : (1992)IILLJ18SC a Constitutional Bench of the Supreme Court speaking through L.M. Sharma, J. (as His Lordship then was) examined the entire case law on the subject. In the said decision the appellant was selected in the combined Civil Services Exam, held by the Union Public Service Commission for appointment to serveral services including the Indian Police Service (IPS) and the Police Services Group 'B'. After examination, a combined merit list for IPS and the Police Service Group 'B' was announced, in which name of the appellant was included. There were 70 vacancies in the IPS cadre, 54 were in general category and 16 were reserved for SC and ST candidates. The position of the appellant in the list was not high enough to be included for appointment in the IPS cadre. He was offered appointment in Police Services Group 'B' which he accepted. On account of several candidates allotted to Police Services Group 'B' not jointing, the position of the appellant improved and he was on the top of the list. In 1979, 14 vacancies arose in the IPS cadre due to selected candidates not joining the service. The appellant, therefore, made representation that such vacancies should be filled up and he should be posted there. Such request was turned down and thereupon he approached Delhi High Court. The case of the appellant was that since several vacancies in the IPS cadre remained unfilled, he was entitled to be appointed in one of them as he was already selected for recruitment. Negativing the contention of the appellant the Supreme Court made following partinent observations:
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. Thus 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 : (1973)IILLJ266SC , Miss Neelima Shangla v. State of Haryana : [1986]3SCR785 or Jitendra Kumar v. State of Punjab : AIR1984SC1850 .
31. From the aforesaid observations, it becomes clear that even constitutional bench of the Supreme Court of India has now taken the view that a successful candidate whose name is included in the select list does not acquire any indefeasible right to be appointed. Notification of vacancies simply is an invitation to qualified candidates to apply for recruitment and on inclusion of their names in the select list they do not acquire any right to the post. There is no legal duty on the State to fill up the post. It is for the State to take a decision as to whether it wants to fill up all vacancies or not. Govt., has to decide how many appointments should be made. Existence of vacancy does not give a legal right to a selected candidate. The decision not to fill up the vacancies has to be taken bona fide for appropriate and good reasons. Once it is established that the Govt., has acted in good faith and has for valid reasons decided not to fill in the post, there is no jurisdiction in the Court to issue mandamus to fill up the post from amongst candidates, whose names are included in the select list. The submission that the authorities were under a duty to continue the process of filling up all vacancies until none remains vacant was in terms negatived by the Supreme Court.
32. In the case of Union Territory of Chandigarh v. Dilbagh Singh reported in : (1993)IILLJ1043SC the aforesaid principle was once again reiterated by Apeax Court in the following words:
A candidate who finds a place in select list as a candidate selected for appointment to a civil post, does not acquire an indefeasible right to be appointed in such post in absence of any specific rule entitling him for such appointment and he could be aggrieved by his non-appointment only when the Administration does so either arbitrarily or for no bona fide reasons. It follows as a necessary concomitant that such candidate even if has a legitimate expectation of being appointed in such post due to his name finding a place in the select list of candidates, cannot claim to have a right to be heard before such select list is cancelled for bona fide and valid reasons and not arbitrarily.
33. In the case of P. Mahendran v. State ofKarnataka reported in : AIR1990SC405 the Apex Court was called upon to decide the question as to whether the subsequent amendment made in statutory rules would invalidate the selection already made. Before the Apex Court the dispute related to the selection and appointment of Motor Vehicle Inspector. Recruitment to the said post was regulated by the Karnataka General Service (Motor Vehicles Branch)(Recruitment) Rules, 1962. These rules inter alia provided for direct recruitment to the post of Motor vehicle Inspector prescribing minimum qualification requiring the candidate to be the holder of diploma in Automobile Engineering or Mechanical Engineering. In 1978 the Karnataka Public Service Commission held selections and about 200 posts of Motor vehicle Inspectors were filled up from amongst the candidates holding Diploma in Mechanical Engineering and Automobile Engineering. On 28-9-1983 the Karnataka Public Service Commission issued an advertisement for 56 posts of Motor Vehicle Inspectors. These posts were later increased to 102 posts. The advertisement stipulated that a candidate for selection should be the holder of diploma in Automobile Engineering or Mechanical Engineering. The persons who were holding diploma in Mechanical Engineering applied for selection to the post of Motor vehicle Inspector. Such persons were invited for interviews and the interviews were held in 1984. There was some litigation in the High Court about the procedure adopted by the Commission for reserved seats and the High Court granted stay. Subsequently the stay was modified permitting the Commission to make selection and appointment. Thereafter, the Commission resumed interviews and completed the same and declared the result on 22-6-1987. The selected candidates were given intimation of their selection. In the meanwhile, on 4-5-1987 the State Govt. of Karnataka amended the Recruitment Rules omitting the qualification of diploma in Mechanical Engineering for the post of Motor Vehicle Inspector. Because of the amendment of Rules the holders of diploma in Automobile Engineering become exclusively eligible for appointment to the post of Motor Vehicle Inspectors. The holders of diploma in Mechanical Engineering were thus excluded. It was in this fact situation that a question arose before the Court as to whether 1987 Amendment to the Recruitment Rules would affect the selections which were made or which are in the process of finalisation. It was in this context that the Apex Court found that the process of selection had commenced in the year 1983 which had to be completed in accordance with law as is stood at the commencement of selection. The amended rules could not be applied to invalidate the selection made by the Commission. After considering various decisions the Supreme Court observed as under:
In this background, the Court made observations that a candidate merely by making application does not acquire any right to the post. It is true that a candidate does not get any right to the post by merely making an application for the same, but a right is created in his favour for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rules. If a candidate applies for a post in response to an advertisement issued by the P.S.C. in accordance with the recruitment rules he acquires right to be considered for selection in accordance with the then existing rules. The right cannot be affected by amendment of any rules unless the amending rule is retrospective in nature. In the instant case, the Commission had acted in accordance with the then existing rules and there is no dispute that the appellants were eligible for appointment, their selection was not in violation of the recruitment rules.
34. In the case of Kantibhai Parmarbhai Wanker v. Dist. Sudpt. of Police, Sabarkantha reported in 1990(2) GLR 1255 the Division Bench of this Court followed the principle laid down in the case of P. Mahendran (supra). The Division Bench of this Court found that the petitioners were called for selection by the District Employment Officer, Sabarkantha for preparing select list for appointment to the post of Armed Police Constable on 3-6-1987. They were subjected to physical test, written test, oral interviews etc. upto 24-12-1989 and they were selected. The select list was prepared which was operated for a period of one year or till next select list is prepared whichever is earlier. The statutory rules were, however, amended by Amendment Rules of 1988 and by me amendment eligibility for direct appointment was affected. The Director General of Police thereupon instructed the Dist. Supdt. of Police to cancel the entire select list already prepared. The directions were obviously given in the light of amended Rules. In the aforesaid fact situation the Court found that the amendment of rules was prospective and the selection which was already made on the basis of amended rules cannot be cancelled on the basis of subsequently amended rules. Such an amendment cannot deprive the candidates of appointment who were called for selection and were already placed on the select list.
35. In the case of Gujarat State Civil Supplies Corporation Ltd. v. Dasrathlal L. Patel reported in 1993(2) GLR 1676 the Division Bench of this Court was once again faced with identical question. The question arose before the Division Bench is formulated by the Division Bench as under:
Whether the select list drawn in conformity with the existing Recruitment Rules for filling up existing vacancies can be abandoned? and the process of selection which has culminated in drawing up of said selection list can be set at naught either (a) because of the coming into operation of the new Rules which are only prospective in nature or (b) because of subsequent settlement between the employer and some of the in-service employees to which a selectee on the list was never a party and which occasion provides for relaxation qua the experience, qualification in violation of rules?.
36. Having so formulated the question the Division Bench of this Court held that the amended rules were only prospective in nature. There was nothing in me rule either expressly or by necessary implication providing that the rules will have retrospective effect. Consistent with the ratio laid down by the Supreme Court in the case of P. Mahendra, (supra) the Court held that the selection of a candidate made by the Corporation on the basis of existing rules could not be abandoned and set at naught on the basis of amended rules which were not retrospective in operation.
37. From the aforesaid decisions it becomes abundantly clear that when newly framed rules are only prospective in nature and are not retrospective in nature the selection of a candidate already made on the basis of existing rules cannot be set at naught on the ground that the said selection was not in accordance with subsequently amended rules, and the amended rules cannot be applied to invalidate the selection already made. Though it is true that a candidate does not get any right of being appointed to the post by merely making application for the same, it shall have to be accepted that right is created in his favour for being considered for the post in accordance with terms and conditions of the advertisement and the existing recruitment rules. His right of being considered for selection in accordance with existing rules cannot be affected by amendment of any rule unless the amending rule is retrospective in nature.
38. Based on the aforesaid principle, the select lists which were prepared between 1983-85 based on the Rules of 1982 cannot be invalidated on the ground that in the year 1988 the statutory rules were amended and cadre was re-structured or further higher qualifications were prescribed for Gram Sevaks (Multipurpose) and Gram Sevaks (Training & Visit). The select lists when made were consistent with the Rules of 1982 which were then in vogue. Subsequent amendment, i.e., Rules in the year 1988 cannot result into invalidation of the process of selection and the select lists prepared accordingly. The submission of Mr. P.M. Raval, learned Addl. A.G. and Mr. R.M. Chhaya, learned A.G.P. that subsequent amendment of Rules made in the year 1988 would justify the cancellation of lists as the selection made consistent with the Rule of 1982 between 1983-85 was inconsistent with the subsequently framed rules, therefore, cannot be accepted. The said submission runs counter to the decision of the Apex Court in the case of P. Mahendrcm (supra) as well as decision of the Division Bench of this Court in the cases of Kantibhai Parmarbhai Wanker (supra) and Gujarat State Civil Supplies Corporation Ltd. (supra).
39. In the case of Babita Prasad v. State of Bihar reported in 1993 (Suppl.) (3) 1SCC 268 the practice of preparing too long a panel of successful candidates was deprecated by the Supreme Court. It was found that too long or inadequately lengthy list of successful candidates would last indefinitely thereby barring and frustrating the future generations for decades from being considered for the vacancies and also rendering or continuing jobless fresh candidates. A select list or panel which is prepared must have co-relation with the existing vacancies or anticipated vacancies arising in near future and for fixed time. In the context of merit list to be prepared by the Guj. Public Service Commission, in the case of Veljibhai M. Desai v. State of Gujarat reported in 1992(2) GLH 194 it was contended before this Court that the purpose of direct recruitment is to infuse new and fresh blood in the administration so that young, talented, freshly equipped candidates possessing necessary dynamism is available to the administration. In the context of controversy, this Court took the view that the State Govt, was justified in contending that on inclusion of name in merit list, candidate can stake his claim for consideration for such vacancies which were then available or which would have been available in the near future or in the reasonable vicinity from the date of preparation of the list, but they cannot contend that on failure to prepare the next list the earlier merit list shall be operated for all times to come so as to confer right on them of being considered for any vacancy that might arise. This may be quite contrary to the spirit of infusing fresh blood in administration. The practice of preparation of unduly lengthy select list quite disproportionate to the number of vacancies notified is required to be condemned and deprecated. In fact, a select list shall have to be co-terminus with the number of vacancies. Preparation of the other list or list of candidates equal to two or three times of number of vacancies so that in case of non-availability or non-resumption of duties on appointment by any of the candidates in the select list duly selected candidates may be available is undoubtedly from the point of administration a permissible policy. But such additional list shall have to be treated as waiting list. The candidates whose names are included in the waiting list shall have to be clearly informed that they are wait-listed and have right of being appointed in case duly selected candidate does not report for duty or in case number of other vacancies arise. By preparing unduly lengthy select list disproportionate to the number of existing vacancies a large number of candidates are given a hope of being appointed in future in public employment. They indefinitely for a very long period wait in the fond hope of getting employment pursuant to their selection. Very often such candidates even get age-barred for public employment. Very often from out of such unduly lengthy select lists candidates are given appointment out of their turn by considerations which are extraneous and irrelevant. By such practice equal opportunity in the matter of employment is ruthlessly denied. Therefore, it is high time for the administration to provide a consistent policy of preparing a select list co-terminus with number of existing vacancies. The administration must ensure that under no circumstances the select list shall exceed the number of existing vacancies. Practice of preparing lengthy list of 2 to 3 times to the number of existing vacancies shall have to be discontinued with further policy of preparing a waiting list of very few candidates so that contingencies like some of the candidates in the merit list failing to resume duty despite their appointment or vacancies occurring all of sudden could be provided for. In fact, this practice of preparing an unduly lengthy select list which gives rise or generate hopes of getting public employment for candidates in wait list or candidates far below in the select list. Such candidates do not distinguish between the select list and wait list and they regard their name in the select/wait list as conferring right upon them to get employment. In this country of jobless unlimited such candidates wait in the fond hope of getting some employment. After waiting for years together when they do not get employment they even resort to illegal and unconstitutional methods to get employment. At times by waiting for unduly long period such candidates even get age-barred so as to disqualify themselves for public employment. Therefore, this system of preparing unduly lengthy select list in every respect ultimately result into increasing unemployment, bringing about frustration and generating unnecessary litigation.
40. In the case of State of Bihar v. Secretariat Asstt. Successful Examinees' Union 1985 reported in : AIR1994SC736 the Apex Court was, once again, called upon to decide the question arising from expectation of persons whose names are included in unduly lengthy select list and who are ultimately denied appointment. The Subordinate Services Selection Board of State of Bihar issued an advertisement for appointment to post of Assistants in Secretariat. The advertisement referred to the vacancies upto the year 1985-86. The examination was held in November, 1987. However, the result of the examination was published only in July, 1990. On 25th August, 1987, 357 vacancies were existing. On the recommendation of the Board 307 candidates from out of the selected candidates were appointed. Candidates securing more than 50% of marks in the general category and whose names were in the select list were empanelled and kept in wait list in anticipation of release of further vacancies by the State. However, further vacancies were not disclosed and therefore, no further appointments were made. The candidates who had applied for appointment and whose names were also included in the list found their expectations and hopes not belied. The State by that time issued anomer fresh advertisement for appointment of Secretariat Asstts. This resulted into filing of petition. It was in this fact situation mat the Supreme Court held that a person who is selected does not, on account of being empanelled, alone acquire any indefeasible right of appointment; Empanelment on a post is a condition of eligibility for consideration for appointment and it does not amount to creation or create a right to be appointed unless the relevant service rules say to the contrary.
In the case before the Supreme Court the High Court gave direction to give appointment to the empanelled candidates against the vacancies of 1991. The Supreme Court noticed that the select list was prepared for the vacancies upto the year 1985-86 and that the result of the examination was published in July, 1990. The vacancies upto 1-9-1987 were determined as 357. The question was as to whether for the vacancies which have arisen subsequent to 1987 candidates empanelled can stake their claim and it was in this connection that the Supreme Court observed as follows:
We are, therefore, of the opinion that the directions given by the High Court for appointment of the empanelled candidates according to their position in the merit list against the vacancies till 1991 was not proper and cannot be sustained. Since no examination has been held since 1987, persons who have become eligible to compete for appointments were denied the opportunity to take the examination and the direction of the High Court would prejudicially affect them for no fault of theirs. At the same time, due to the callousness of the State in holding the examination in 1987 for the vacancies advertised in 1985 and declaring the result almost three years latter in 1990 has caused great hardship to the successful candidates. The State was expected not to act in such a leisurely manner and treat the matter of selection for appointment to services in such a casual manner. We must record our unhappiness on this state on affairs. There is no justification for holding the examination two years after the publication of advertisement and declare the result almost three years after the holding of the examination and not issuing any fresh advertisement between 1985 and 1991 or holding examination for making selections. We expect the State Government to act in a better manner, at least, hereinafter and since Mr. Rao, the learned Senior Counsel has shared our concern and assured us of advising the State Government accordingly, we say no more on that aspect at this stage.
41. From the aforesaid it becomes clear mat the Supreme Court has set aside the order of the High Court insofar it directed filling up of vacancies of 1989, 1990 and 1991 from out of the list of candidates who had appeared in the examination held in 1987.
42. It thus become clear that for the vacancies which have subsequently arisen or which were not at all in contemplation when the select list was prepared the candidates whose names are included in the list cannot stake their claim. Such vacancies shall have to be filled in by fresh process of selection providing opportunity to young blood to compete.
43. In the case of State of Bihar v. Madan Mohansingh reported in : AIR1994SC765 once again the Supreme Court has reiterated the principle that once candidates selected and recommended for appointment in order of merit against existing vacancies are appointed the select list gets exhausted and it cannot be and should not be operated for filling up of subsequent vacancies, otherwise if it is operated for filling up future vacancies or subsequent vacancies it would amount to depriving all other candidates who have become eligible subsequent to advertisement and selection process. Thus, it is clear that ordinarily a select list duly prepared must be co-terminus with number of existing vacancies and once such vacancies are filled up such select list gets exhausted and for the vacancies which might arise subsequently or in future such select list cannot be and should not be operated, otherwise that would virtually amount to denying right of atleast being considered to other eligible candidates for future vacancies.
44. From the aforesaid resume of various binding precedents of the Apex Court of the country and the manner in which the Apex Court has dealt with various facets of preparation of select list, its operation, its life and rights of persons whose names are included in the select list following statement of law can be deduced:
(A) Notification of vacancies or existence thereof does not give a legal right to a candidate to be selected for appointment. Notification of vacancies simply is an invitation to qualified candidates to apply for recruitment and on inclusion of their names in the select list they did not acquire any right to the post.
(B) A successful candidate whose name is included in the select list does not acquire any indefeasible right to be appointed.
(C) Unless the relevant Recruitment Rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. There is no legal duty on the State to fill up the post. It is for the State to take a decision as to whether it wants to fill up all vacancies or not. Government has to decide how many appointments should be made.
(D) It is, of course, open to the Government not to fill up the vacancies for a valid reason. Such a decision should not be arbitrary and unreasonable but must be based on sound, rational and conscious application of mind. If for reasons which are reasonable and rational, it is decided not to fill up the vacancies, Government cannot be compelled by mandmus to fill up the vacancies. Once it is established that the Government has acted in good faith and has for valid reasons decided not to fill in the post, there is no jurisdiction in the Court to issue mandamus to fill up the post from amongst candidates whose names are included in the select list.
(E) It follows as a necessary concomitant that such candidate even if has a legitimate expectation of being appointed in such post due to his name finding a place in the select list of candidates cannot claim to have a right to be heard before such select list is cancelled for bona fide and valid reasons and not arbitrarily.
(F) However, 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.
(G) When Recruitment Rules are newly made or amended prospectively the selection of a candidate already made under existing Rules cannot be set at naught on the ground that such selection was not in accordance with subsequent amended rules. Amended rules or subsequently framed rules cannot be applied to invalidate selection already made. Though it is true that a candidate does not get any right of being appointed to the post, it shall have to be accepted that on selection inchoate right is created in his favour for being considered for the post. His right of being considered for selection in accordance with existing rules cannot be affected by amendment of rules unless such amendment is retrospective is nature.
(H) A practice of preparing too long a panel of candidates is unhealthy and undesirable. Inadequately lengthy list of successful candidates frustrates the hopes of future young unemployed jobless candidates as they do not get even chance of applying for consideration. A select list or panel must have, therefore, co-relation with existing vacancies or anticipated vacancies likely to arise in near or reasonbly foreseeable future. The current practice of preparing select list three to five times in size to the number of vacanices is not desirable.
In the alternative, a clear distinction is required to be made between select list and wait list. A select list shall have to be co-terminus with number of vacancies.
45. Now applying the aforesaid principle to the fact situation obtaining before mis Court, I am of the opinion that subsequent amendment of rules in the year 1988, i.e., Rule 17 and subsequent amendment in the Examination Rules in the year 1992 would not justify the State Govt, in issuing direction to the respective Dist. Panchayats to cancel the select-list of Gram Sevaks (Multipurpose) or Gram Sevaks (Training & Visit). It is pertinent to note that such lists were prepared for the vacancies which existed between 1983-85 and admittedly at that point of time Rules of 1982 were in operation. It is also not disputed that the process of selection was undertaken under said Recruitment Rules of 1982 and select lists were prepared. Unfortunately, preparation of select list took unduly long period. However, when the select lists were prepared existing vacancies were earmarked and available with the respective Panchayats. On such vacancies persons were required to be appointed from the select lists already prepared. Once said vacancies are filled up from amongst the candidates selected as per their merit, the select lists would become inoperative or would get exhausted. Simply because unduly long select list is prepared no right could be claimed by the persons whose names are included in the select list of getting appointment to the post in question. In fact, such candidates on inclusion of their names in the select lists do not get indefeasible right of being appointed. They have simple right of being considered or they have rendered themselves fit for being considered. Moreover, when vacancies are filled up from amongst the selected candidates as per their merit such select lists shall have to be treated as exhausted or defunct and cannot be kept alive indefinitely for unduly long period.
46. Now turning to the situation district wise, in Ahmedabad District 40 vacancies of Gram Sevaks (Multipurpose) were advertised. A Select list of 40 candidates was prepared and 36 were appointed. Number of then existing vacancies available were 40. Still four persons from the select list could claim right of being considered. But for the direction given by the State not to operate the select list perhaps four persons as per their placement in the select list would have got appointment. There are two petitions before this Court from Ahmedabad district, being Spl. C.A. Nos. 828 of 1992 and 5016 of 1991. The case of the petitioner in Spl. C.A. No. 828 of 1992 is that he was selected and was placed at SI. No. 52 in select list. In Spl. C.A. No. 5016 of 1991 there are 9 petitioners. It is their case that they were selected and their names were included in the select list. Memo of petition is, however, very vague. At Annexure 'B' to the petition the merit list numbers of the candidates are stated. Most of the petitioners, except one, are above SI. No. 40. One candidate is stated to be at SI. No. 33. It is not possible to ascertain as to whether name of any of the petitioners was included in the select list or not. The stand of the State Govt, is that a select list of only 40 candidates was prepared. In that view of the matter, as against available vacancies since 4 vacancies were not filled up, direction could be issued to the respondent Nos. 1 to 4 to ascertain as to whether any of the petitioners of Spl. C.A. No. 5016 of 1991 or Spl. C.A. No. 828 of 1992 finds his place upto SI. No. 40, and if name of any of the petitioners is included in the select list, the respondents are directed to give him appointment to the post of Gram Sevak (Multipurpose) without taking into consideration that he is now over-aged. If the names of the petitioners are not to be found in the merit list, they shall not be entitled to appointment and those candidates whose names are already in the select list and who are denied appointment may be considered for appointment.
47. Turning now to Dang District three vacancies of Gram Sevaks (Training Visit) were notified. However, a select list of 12 candidates was prepared. From the said select list seven candidates were offered appointment. Admittedly, six of them resumed duties. One candidate, i.e., Dhirenkumar M. Patel, who was at SI. No. 7 in the select list though was offered appointment on 30th June, 1988 did not resume duty. It is, thus, clear that more number of candidates were appointed than the existing vacancies. From this District of Dang, Spl. C.A. No. 3464 of 1991 is filed by one Patel Jinabhai Lalbhai. It is his case that he was selected and his name was included in the select list at SI. No. 8. It is his further case that though notified vacancies were 3, seven persons were offered appointment, and the seventh person to whom the appointment was offered has not resumed duties. He has, therefore, prayed that since his name was at SI. No. 8 he should be offered appointment on the vacant post. Mr. J.G. Shah, learned Advocate for respondent-Panchayat has submitted that the said 7th post on which appointment was offered to Dhirenkumar M. Patel is lying vacant as he has not reported for duty, but the same could not be filled up because at present there is ban on fresh appointments. Mr. M.R. Shah, learned Advocate for the petitioner has, on the other hand, submitted person to whom the appointment was offered has not resumed duties. He has, therefore, prayed that since his name was at SI. No. 8 he should be offered appointment on the vacant post. Mr. J.G. Shah, learned Advocate for respondent-Panchayat has submitted that the said 7th post on which appointment was offered to Dhirenkumar M. Patel is lying vacant as he has not reported for duty, but the same could not be filled up because at present there is ban on fresh appointments. Mr. M.R. Shah, learned Advocate for the petitioner has, on the other hand, submitted that it is a case of notifying less number of vacancies than the available vacancies, and in fact, vacancies were available, and therefore, 7 persons are required to be appointed. If the 7th person in the select list has failed to report for duty, the next in the select list being SI. No. 8 must be offered appointment. From the aforesaid facts, it becomes clear that though there were more vacancies available only 3 were notified and seven persons were offered appointment from the select list. It is, therefore, held that there were seven vacancies. From such available vacancies only 6 persons were appointed and 7th post is still lying vacant. Said post is required to be filled in from the select list which was prepared. The petitioner was at SI. No. 8 in the select list. He was, therefore, entitled to be considered for said post and was entitled to be appointed. Imposition of subsequent ban on fresh appointments could not result into denial of appointment to duly selected candidates. Had respondent-Panchayat immediately undertaken the exercise of filling in the 7th post the petitioner would have been appointed, but the respondent-Panchayat, however, did not undertake the exercise and so cannot now be permitted to fall back upon the subsequent ban on recruitments. Consistent with the directions issued by the Supreme Court in the case of State of Bihar v. Madan Mohansingh reported in : AIR1994SC765 (supra) respondents are required to be directed to consider and appoint the petitioner on the post of Gram Sevak (Training & Visit), and thereafter to treat the said select list as inoperative and exhaustive, and are directed accordingly.
48. Special C.A. No. 3268 of 1992 is filed by one Bahadursinh Abhaisinh Gohil who was the candidate for the post of Gram Sevak from Kheda Dist. Spl. C.A. No. 3269 of 1992 is filed by one Panchal Kanubhai Naranbhai and Spl. C.A. 3270 of 1992 is filed by one Harjibhai A. Majedia who are the candidates for the aforesaid posts from Kheda District. It appears that 38 vacancies of Gram Sevak (Transfer & Visit) were notified for Kheda District. Select list of 98 persons was prepared. 44 persons were offered appointment. It is thus clear that a select list which was meant for 38 posts of Gram Sevaks (Training & Visit) was already operated and 38 persons were offered appointment from said list. Names of the petitioners in first 40 members in the select list are not to be found. Since all the vacancies for which advertisement was issued and the select list was prepared are filled in from amongst selected candidates, select list gets exhausted and such select list could not be directed to be operated for vacancies which have subsequently arisen and consistent with the directions issued by the Supreme Court in the case of State of Bihar v. Madan Mohansingh reported in : AIR1994SC765 (supra) no relief could be granted to any of the petitioners in his group of petitions and all the three petitions, therefore, shall have to be dismissed and are dismissed. Rule in each petition is discharged.
49. In Special Civil Application No. 948 of 1992 one Rameshkumar H. Dave has, inter alia, prayed that he has applied for the post of Gram Sevak in Mehsana District purusant to advertisement issued. It appears that in Mehsana District there were 70 notified vacancies in the post of Gram Sevak (Training & Visit) and 36 notified vacancies in the post of Gram Sevak (Multipurpose). Thus 106 vacancies were in total notified. For such vacancies select list of 87 candidates for Gram Sevak (Training & Visit) and 34 candidates of Gram Sevak (Multipurpose) totalling to 121 candidates was prepared. It also becomes clear from the chart produced by the State Govt., that 73 persons were appointed on the post of Gram Sevak (Training & Visit) and 34 persons were appointed on the post of Gram Sevak (Multipurpose), in all 107 appointment were made as against 106 notified vacancies. It thus becomes clear that the select lists which were prepared were already operated and vacancies which were notified were filled in. The Dist. Panchayat, Mehsana has filed affidavit-in-reply of Dy. Director of Agriculture. From the said affidavit-in-reply it becomes clear that as against 70 advertised posts of Gram Sevaks (Training & Visit) SelectCommittee prepared select list of 87 persons out of which, in fact, 65 persons were appointed and 59 persons actually joined duty, 8 candidates belonging to Scheduled Tribe were appointed from the very select list in the year 1988. Thus, all the 67 candidates are appointed from the select list. It is further pointed out in the affidavit-in-reply that in fact there is backlog of vacancies reserved for SC and ST candidates. From the select list, therefore, no appointment could be given as the notified vacancies are already filled in. From the aforesaid averments contained in the affidavit-in-reply filed by Dist. Panchayat it is not possible for this Court to issue any direction to respondents to appoint the petitioner on the post of Gram Sevak. In fact, the select list which is prepared was duly operated and selected persons are already offered appointment and vacancies as notified are already exhausted. In that view of the matter, present petition must fail and same is liable to be dismissed and is dismissed. Rule is discharged.
50. Special Civil Application No. 2233 of 1989 is filed by 31 petitioners claiming to be the persons selected for the post of Gram Sevak (Multipurpose) in July, 1987. It is their case that they have undergone process of selection and their names were included in the select list. From the chart produced by the State Govt, it becomes clear that 36 vacancies were notified for the post of Gram Sevak (Multipurpose) as against which select list of 34 persons was prepared. All the 34 persons from the select list are already offered appointments. The petitioners being the person who are included in the select list must have been offered appointment on the post of Gram Sevak (Multipurpose). Mr. N.R. Sahani, learned Advocate for the petitioners stated that after 1990 the petitioners have not come to instruct him and that they must have been appointed. The learned Advocate for respondent Dist. Panchayat states that entire select list of Gram Sevaks (Multipurpose) is operated and all the 34 persons are appointed. Thus, petitioners having already been appointed on the post of Gram Sevak, no relief is required to be granted in this petition. Rule is, therefore, discharged. No costs.
51. Special Civil Application No. 1914 of 1989 is filed by 20 petitioners. It is required to be noted that they were included in the select list prepared by Kutch Dist. Panchayat. The advertisement was issued for 70 vacancies of Gram Sevaks (Training & Visit) and 9 posts of Gram Sevaks (Multipurpose). As against said notified vacanices select list of 108 for the post of Gram Sevaks (Training & Visit) and select list of 118 persons for the post of Gram Sevaks (Multipurpose) was prepared. As against total notified vacancies, in fact, 139 appointments were made. Against 70 vacancies of Gram sevaks (Training & Visit) 77 persons were appointed and as against only 9 vacancies of Gram Sevaks (Multipurpose) 62 candidates were appointed. It is difficult to comprehend as to how more number of persons can be appointed than notified vacancies. However, large scale irregularities appear to have been committed and persons are appointed though notified vacancies were only 79. Such a select list which was made for 79 vacancies only could not now be permitted to be operated when more than 79 vacancies were filled in from such select list. Such select list has outlived its utility. Persons who were included in such select list were simply wait listed and they do not acquire any right of being appointed in the post. No relief, therefore, could be granted to the petitioners of this petition, and same is, therefore, required to be dismissed and is dismissed. Rule is discharged. No costs.
52. Special Civil Application No. 1367 of 1991 is filed by ten petitioners from Valsad Dist. It is their case that an advertisement was issued in the year 1984 to fill in the vacancies of Gram Sevaks in Valsad Dist. Panchayat. They have competed for such post and that their names were included in the select list. From the chart produced by the State Govt, it becomes clear that 35 vacancies of Gram Sevaks (Multipurpose) were notified. Select list of 66 candidates was prepared and out of such select list only 3 candidates were appointed and rest of the posts are lying vacant. It is, thus, clear that the select list which was prepared for 35 candidates of Gram Sevaks (Multipurpose) only 3 persons are appointed and 32 vacancies then existing are not filled up. Consistent with the principle laid down by the Supreme Court in the case of State of Bihar v. Madan Mohansingh reported in : AIR1994SC765 (supra) I am of the opinion that the select list which was meant for the vacancies then existing shall have to be operated for such vacancies. As against 35 vacancies only 3 were filled in, and therfore, 32 candidates from the select list are required to be appointed as per their placement in the select list. It is not known to this Court as to at which serial numbers the petitioners were placed in the select list. The respondent-Valsad Dist. Panchayat is directed to appoint 32 candidates from the said select list of Gram Sevaks (Multipurpose) so as to exhaust all the 35 vacancies. Such appointment shall be given to candidates as per their placement in the merit list only and principle of pick and choose shall not be applied. Appointment shall be offered strictly as per merit from the select list till 32 persons are appointed. It goes without saying that if names of the petitioners appear as per their merit in such select list they shall also be offered appointment to the post of Gram Sevak (Multipurpose). However, if all or anyone of the petitioners is/are beyond 32 persons as per merit, such petitioners shall not be entitled to any relief. This petition accordingly succeeds to the aforesaid extent and rule is made absolute accordingly with no order as to costs.
53. Special Civil Application No. 1618 of 1989 is filed by 12 petitioners from Amreli District. It is their case that pursuant to advertisement they had applied for the post of Gram Sevak (Training & Visit). From the chart produced by the State Govt, it becomes clear that for Amreli District 35 vacancies of Gram Sevaks (Training & Visit) were notified. As against notified vacancies a select list of 69 candidates was prepared. From such select list of 69 candidates appointments are offered to the post of Gram Sevaks (Mulipurpose) to 21 persons. All 35 vacancies were not filled up by operating said select list. Consistent with the directions issued by the Supreme Court in the case of State of Bihar v. Madan Mohansingh reported in : AIR1994SC765 (supra) in my opinion the select list then prepared shall have to be operated till 35-21 = 14 remaining vacancies are filled up. It is not known to this Court as to at which serial number the petitioners are placed in the select list. The Amreli District Panchayat is directed to operate the said select list of the year 1985 and to appoint remaining 14 candidates from said select list as per their placement in the merit list. If the petitioners are within such 14 then as per their placement in select list respondents are directed to appoint the petitioners also on the vacancies which were then notified. After the 14 candidates are appointed from the select list the merit list shall get exhausted and shall not be operated as all the notified vacancies would be filled up from the said select list. This petition shall have to be allowed to the aforesaid extent of directing the respondent-Amreli Dist. Panchayat to operate the select list to appoint remaining 14 candidates from said select list so as to exhaust the notified 35 vacancies. Rule is made absoulte to the aforesaid extent with no order as to costs.
54. In the result, Rule made absoulte as stated above in Spl. C.A. No. 828 of 1991, 5016 of 1991, 3464 of 1991, 1367 of 1991 and 1618 of 1989 with no order as to costs and rule is discharged with no order as to costs in Spl. C.A. Nos. 3268 of 1992, 3269 of 1992, 3270 of 1992, 948 of 1992, 2233 of 1989 and 1914 of 1989.