A person whose name appears on the select list does not acquire any indefeasible right of appointment, the Supreme Court has held.
“Empanelment at best is a condition of eligibility for appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled as per the statutory rules and in conformity with the constitutional mandate,” said a vacation Bench of Justice B.S. Chauhan and Justice Swatanter Kumar.
Writing the judgment, Justice Chauhan said: “Mere inclusion of a candidate's name in the select list does not confer [on him] any right to be selected, even if some of the vacancies remain unfilled. The candidate cannot claim that he has been given a hostile discrimination. The select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled taking the names from that list as and when it is so required.”
The Bench said: “There may be vacancies available, but for financial constraints, the state may not be in a position to initiate the selection process. A bona fide decision taken by the appointing authority to leave certain vacancies unfilled, even after preparing the select list, cannot be assailed. Courts/tribunals have no competence to issue a direction to the state to initiate the selection process to fill the vacancies. A candidate has only a right to be considered for appointment, when vacancies are advertised and the selection process commences, if he possess the requisite eligibility.”
In the instant case, the Orissa government advertised for filling 15 vacancies of junior clerk in June 1995, with an indication that the number might be increased. Accordingly, the authorities decided to fill 33 vacancies, though a ‘select list' of 66 persons was prepared. Persons whose names figured on the list but were not appointed moved the State Administrative Tribunal, which in April 2000 directed the government to offer appointments to all candidates until the entire ‘select list' was exhausted.
Allowing the State's appeal and setting aside the orders of the tribunal and the High Court, the Supreme Court said: “Once the selection process in respect of a number of vacancies so determined came to an end, it is no more open to offer appointment to persons from the unexhausted list. It is the exclusive prerogative of the employer/State administration to initiate the selection process for filling up vacancies that occurred during a particular year.”
The Bench said: “It is a settled legal proposition that vacancies cannot be filled over and above the number of vacancies advertised, as recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the right, under Article 14 read with Article 16(1) of the Constitution, of those persons who acquired eligibility for the post in accordance with the statutory rules subsequent to the date of notification of the vacancies. Filling of vacancies over the notified vacancies amounts to filling of future vacancies, and thus not permissible in law.”