Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.28179 of 2023 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 Petitioner *** Biranchi Narayan Dash Aged about 58 years Son of Late Bishnu Charan Dash At: Nrusingh Prasad, Maindipur P.O.: Chasikhanda, Via: Anakhia District: Jagatsinghpur Pin: 754 102 … -VERSUS- 1. State of Odisha Represented through Secretary, Revenue Department, Government of Odisha At: Secretariat, Bhubaneswar District: Khordha. 2. Revenue Divisional Commissioner Central Division, Cuttack. 3. The Member, Board of Revenue Odisha, Cuttack, Town/District: Cuttack. 4. Director of Examination, Board of Revenue Odisha, Cuttack. 5. Special Secretary to Government General Administration Department At: Secretaries Building W.P.(C) No.28179 of 2023 Page 1 of 64 P.O./P.S.: Bhubaneswar District: Khordha. 6. Odisha Staff Selection Commission Represented through its Chairman At present, No.1 Barrack, Unit-9 Bhubaneswar – 751 054 Odisha. … Counsel appeared for the parties: Opposite parties. For the Petitioner : M/s. Satrughna Dash (A), Sunakar Mohanty, Sasmita Passayat, Siddharth Dash, Advocates For the Opposite party Nos.1 to 5 : Mr. Satyabrata Mohanty, Additional Government Advocate P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 11.11.2024 :: Date of Judgment : 13.12.2024 J UDGMENT Seeking a direction to the Member, Board of Revenue, Odisha (opposite party No.3) to appoint the petitioner as Junior Grade Typist, this writ petition has been filed invoking extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, with the following prayer(s): W.P.(C) No.28179 of 2023 Page 2 of 64 ―It is therefore prayed that your lordship would be graciously pleased (i) To Admit and allow the writ petition. And (ii) To issue Rule NISI calling upon the opposite parties for filing show cause, if the opposite party fails to show cause or file insufficient cause, then the rule may be made absolute against the opposite parties. And (iii) To issue writ of mandamus, or any other, writ/writs of similar nature directing to the opposite party No.3 for appointing the petitioner as junior grade typist. Or alternatively, the representation under Annexure- 2 (series) dated 18.10.2022 and 12.12.2022 be disposed off within stipulated period. And (iv) To pass any other order(s), relief(s), direction(s) your lordships deem fit and proper for the interest of justice, equity and fair play; And for this act of kindness the petitioner as in duty bound shall ever pray.‖ Facts: 2. Facts, as adumbrated by the writ petitioner, reveal that a Notification No.3303-XXIV-26/89-Exam., dated 20.12.1989 was republished by the Board of Revenue, Odisha, Cuttack (Board of Examiners) in pursuance of General Administration Department Notification W.P.(C) No.28179 of 2023 Page 3 of 64 No.31483/GEN., dated 12.10.1989 containing list of 72 successful candidates for appointment to the post of Junior Typist in the Offices of Heads of Departments, vide Part-II of the Odisha Gazette dated 16.02.1990, wherein the name of the petitioner found place at serial No.68. 2.1. Since the posts were not filled up from the select list, many successful candidates approached the learned Odisha Administrative Tribunal, Bhubaneswar. 2.2. The Odisha Administrative Tribunal, Bhubaneswar while disposing of the case of Sabita Kumari Jena Vrs. State of Odisha, Original Application No.969 of 1992, vide Order 16.10.1992, observed as follows: ―As per Rule 81, the Merit List shall remain valid for a period of one year or till the publication of the results of the next recruitment examination, whichever is earlier. *** Once we arrive at this conclusion, the question of Government declining to extend the period of validity of the select list published on 20.09.1989 does not arise because the said list would remain valid till the publication of the results of the next recruitment examination, which admittedly has not been held as yet. 1 The Odisha Typists Service (Recruitment and Conditions of Service of Typists in the Offices of the Heads of Departments) Rules, 1982. W.P.(C) No.28179 of 2023 Page 4 of 64 In the circumstances, the prayer of the applicant has got to be allowed. We would accordingly direct the respondent to give appointment to the applicant as a Junior Grade Typist pursuant to her selection as notified in the Odisha Gazette at Annexure-1 and sponsoring of her name done under Annexure-3 within one month from the date of receipt of copy of this Judgment.‖ 2.3. In the case of Bishnu Priya Mohanty Vrs. State of Odisha, Original Application No.1397 of 1994, disposed of vide Order dated 13.04.1994 by the Odisha Administrative Tribunal, Bhubaneswar, it was observed as follows:
Legal Reasoning
―4. Learned Standing Counsel appearing for the State Government submitted that the impugned select list cannot be operated since it is more than one year. This argument is not acceptable to us since the Tribunal has already taken a view that the select list which is more than one year can be operated if no subsequent list has been prepared and this decision of the Tribunal has not been challenged before the Supreme Court nor set aside. But it is possible that for reasons of economy vacant posts are not being filled up. The applicants are apprehensive that the select list is not being operated only with a view to bringing in outsiders and giving them appointment against the existing vacancies. 5. Against this background we would direct that in case the Government proposes to fill up the select list should be considered for appointment against those vacancies according to their placement in the select list and having regard to the reservations for Scheduled Castes, Scheduled Tribes, Women, Physically Handicapped, etc. under the ORV W.P.(C) No.28179 of 2023 Page 5 of 64 Act2 and Rules and other Government instructions, provided no subsequent select list has been prepared.‖ 2.4. Vide Order dated 19.02.1996 passed in Original Application No.1765 of 1993, the Odisha Administrative Tribunal in the case of Laxmi Prasad Pani Vrs. State of Odisha, observed as follows: ―5. Learned Standing Counsel submits that till date 21 candidates from out of the select list have been given appointment and the applicant cannot claim appointment being placed at serial No.24 until the candidates placed at serial No.22 and 23 are provided employment. The Board of Revenue has sponsored the name of the candidate placed at serial No.22 in the meantime. Only after receipt of requisitions departments vacancies available, depending appointment could be given from out of the select list. The plea advanced in the counter appears to be quite reasonable and justifiable. different from the on 6. In view of specific statement made in the counter that on receipt of requisition from the offices of different Heads of Departments, after candidates senior to the applicant basing on such requisition, would be considered, we would dispose of the original application with that respondent-3 would ascertain the existing vacancy position the offices of different Heads of Departments within one month after receipt of a copy of this judgment and if there are vacancies the direction in 2 The Odisha Reservation of Vacancies in Post and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975. W.P.(C) No.28179 of 2023 Page 6 of 64 available as per requisitions received, he would sponsor the names of candidates from out of the select list to the respective offices, within 15 days thereafter. After receipt of such communication from the Board of Revenue, the concerned offices of Heads of Departments would offer appointment to the person/persons above the applicant in the select list and they would be given 15 days‘ time to join their posts. If they do not join within the time specified, the Board of Revenue should be intimated such fact immediately. The Board of Revenue would the sponsor the name of the applicant to the concerned Head of Department without further loss of time.‖ 2.5. Vide Letter No.34— XII-I/99/Examination, dated 12.02.1999, Secretary, Board of Revenue, Odisha instructed all the Section Officers for supply of information regarding vacant position in the post of Junior Grade Typist so as to fill up the vacant posts from amongst rest of the selected candidates. The Revenue and Excise Department by another correspondence vide Letter No.36324-11-E(G)-2/99, dated 07.07.1999 instructed the Secretary, Board of Revenue, Odisha apart from considering the case of the petitioner, sought for information/data with respect to vacant position in the post of Junior Grade Typist from other Heads of Departments. With reference to said Revenue and Excise Department Letter Memo No.36326, dated 07.07.1999, a detailed report was again sought for from the Board of Revenue by the Government vide Page 7 of 64 W.P.(C) No.28179 of 2023 Letter No.47063/11E(G)-2/99/Revenue, dated 31.08.1999. 2.6. The petitioner appears to have made representation dated 18.03.1999 to the opposite parties. The petitioner, having received information from the Deputy Secretary- cum-Public Information Officer, Board of Revenue, Odisha vide Letter dated 17.01.2007, claimed to have come to know that the above list remained valid till 18.05.2000. Such information obtained under the Right to Information Act, 2005 reads as follows: ―Out of the list of candidates selected names of 55 candidates had been sponsored to different Heads of Department for appointment in the post of Junior Grade Typist. As per the observation of Hon‘ble Odisha Administrative Tribunal in Case No.969/92 the select list prepared by Board of Revenue was valid till 18.05.2000, since the subsequent select list prepared by the Odisha Staff Selection Commission was published on 19.05.2000 after conduct of recruitment examination at their level.‖ 2.7. The case of the petitioner is that since advertisement did not disclose the numbers of vacancies to be filled up the post of Junior Grade Typist, till all the successful candidates could be accommodated, further examination should not have been held. Even though the case of the petitioner was directed to be considered by the W.P.(C) No.28179 of 2023 Page 8 of 64 Government, the Board of Revenue failed to consider his case. 2.8. The petitioner makes innocuous prayer for consideration of his representations dated 18.10.2022 and 12.12.2022 by the opposite parties. Counter affidavit of the opposite parties: 3. Counter affidavit has come to be filed by the opposite party Nos.3 and 4 affirming that though select list of 72 successful candidates were published vide Notification No.31483/Gen., dated 12.10.1989 of the General Administration Department and republished vide Notification No.3303-XXIV -26189-Exam., dated 20.12.1989, due to financial crunch of the Government, restriction was imposed for filling up the vacancies. 3.1. In view of Rule 8 of the Odisha Typists Service (Recruitment and Conditions of Service of Typists in Offices of the Heads of Department) Rules, 1982, the merit list would remain valid for a period of one year or till publication of the result of the next recruitment examination, whichever is earlier. 3.2. It is asserted that Sabita Kumari Jena, who was at serial No.21 of the merit list filed O.A. No.969 of 1992; Bishnupriya Mohanty and Rabindranath Samantray, serial Nos.37 and 42 of the select list filed O.A. No.1397 W.P.(C) No.28179 of 2023 Page 9 of 64 of 1994 and Laxmi Prasad Pani (serial No.24 in the select list) filed O.A No.1765 of 1993 before the Odisha Administrative Tribunal. Said Original Applications were disposed of by Orders dated 16.10.1992, 13.04.1994 and 19.02.1996 respectively. But in the case of the petitioner and two others3, who have filed Original Application bearing No.2169 (C) of 1999 before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack, with a prayer to direct the opposite parties to give appointments, vide Order dated 02.08.1999, the following was the observation: ―It is more than nine years and six months after the select list in question was published. Assuming that the validity was conferred on the select list by virtue of the two Judgements of the Tribunal referred to above [in Ο.Α. Νo.969 of 1992 disposed of on 16.10.1992 and in O.A. No.1397 of 1994 vide Order dated 13.04.1994] the situation has changed completely due to the following reasons: i) The power to conduct recruitment to the posts of Junior Grade Typist in different Heads of Department now vests with the Staff Selection Commission by virtue of the latest amendment to the Odisha Staff Selection Commission Rules, 1993. is clear from the General Administration This Department Notification dated 27.07.1998 at 3
Legal Reasoning
The petitioner (serial No.68) along with Sri Pradeep Kumar Tripathy (serial No.53 of the select list) and Sri Narendra Nath Das (serial No.72 of the select list), on being allowed in terms of Rule 4(4) of the Odisha Administrative Tribunal (Procedure) Rules, to file joint application under Section 19 of the Administrative Tribunals Act, 1985 filed O.A. No.2169 (C) of 1999 before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack. W.P.(C) No.28179 of 2023 Page 10 of 64 ii) Annexure-9 to the O.A. The select list prepared years ago by an agency which no longer has the power to conduct the recruitment for the posts in question can no longer be operated for filling up those posts. The decision of the Supreme Court in the case of Surinder Singh and others Vrs. State of Punjab and others reported in 1997(2) ATT (SC) 422 = (1997) Supp.(3) SCR 538 = 1997 INSC 621 makes it abundantly clear that the select list prepared at a certain point of time cannot be utilised as a perennial source for filling up vacancies, which arise in future. The above decision was not brought to the notice of the Bench when the order at Annexure-5 was passed. iii) The vacancies in questions are not the advertised vacancies of 1989, for which the Board of Examiners had prepared the select list. Utilising a select list for filling up vacancies which were not advertised, violates Article 14 of the Constitution, as it takes away the right of the candidates, who might have acquired eligibility at the time of occurrence of vacancies, previous by advertisement to compete for them. covered not the iv) The Staff Selection Commission issued an advertisement for filling up the posts of Junior Grade Typists in the Heads of Department vide Annexure-7 [Notification No.19559, dated 27.07.1998]. The vacancies against which appointment is claimed are covered by the advertisement. Learned counsel for the applicant submits that the notification at Annexure-9 has no relevance to this case because the posts of typists are not in the Heads of W.P.(C) No.28179 of 2023 Page 11 of 64 under the General Administration Department Department. Perusal of the Notification makes it clear that the posts of Junior Assistant, Junior Stenographer and Junior Grade Typist indicated against serial No.9 are not in respect of Heads of Department under the G.A. Department only, but for all Heads of Department, because the Recruitment Rules for these posts have been framed by the General Administration Department and are administered by it.
Decision
For the above reasons we find that the relief claimed in the original application is not maintainable. The Original Application is, therefore, disposed of as not admitted.‖ 3.3. Said order passed by the learned Administrative Tribunal was challenged before this Court in OJC No. 13001 of 1999 which was disposed of on 25.01.2000 and the order of the learned Tribunal remained undisturbed. 3.4. The petitioner filed a Civil Review bearing No. 10 of 2001, which got disposed of on 10.01.2018 by this Court. Against said Order, the petitioner filed CMAPL No. 166 of 2018 before this Court, which got dismissed vide Order No. 09, dated 29.11.2019. On 03.09.2021 vide Order No 11, this Court recalled the Order dated 29.11.2019 passed in CMAPL No.166 of 2018. Hence, the said CMAPL was allowed and consequently, civil review being CVRVW No. 10 of 2001 was restored. An I.A. filed for recalling of Order passed in Civil Review was dismissed vide Order dated 08.07.2022. It is asserted by W.P.(C) No.28179 of 2023 Page 12 of 64 the opposite parties that in the above view of the matter, the order passed by this Court in OJC No. 13001 of 1999 has attained finality. 3.5. It is put forth by these opposite parties that the petitioner approached this Court by filing writ petition bearing W.P.(C) No. 24435 of 2022 which was allowed to be withdrawn to approach the appropriate authority. On 25.11.2022, the petitioner approached the Member, Board of Revenue, with a prayer to consider his candidature for Junior Grade Typist, which came to be rejected on the ground that: ―the select list prepared by the Board of Revenue years ago cannot be operated for filling up the post after coming into force off the Odishha Staff Selection Commission Rules, 1993 and a select list prepared at a certain point of time cannot be utilised as a perennial source for filling up future vacancies. Now the petitioner has filed this writ petition with the same prayer.‖ 3.6. It has been further clarified by the opposite parties that, the candidate at serial No.69: Miss Parbati Mallick and serial No.71: Sri Umesh Kumar Khatua were given appointment in the year 1996 as against available vacancy for the post of Junior Typist, as both of them belonged to Scheduled Caste category. Out of 72 candidates, all the reserved category candidates had been appointed to the post of Junior Grade Typist in W.P.(C) No.28179 of 2023 Page 13 of 64 different Heads of Department except certain candidates who belong to General/Unreserved category. 3.7. Under the above premises, it is impermissible to consider the case of the petitioner as the Odisha Staff Selection Commission is now vested with power of recruitment of Junior Grade Typists. Hearing: 4. Pleadings, being completed and exchanged amongst the counsel for respective parties, on consent of counsel for the parties, this matter is taken up for final hearing at the stage of admission. 4.1. Accordingly, heard Sri Satrughna Dash, learned Advocate for the petitioner and Sri Satyabrata Mohanty, learned Additional Government Advocate for the opposite parties and the matter stood reserved for preparation and pronouncement of Judgment. Rival contentions and submissions: 5. Sri Satrughna Dash, learned Advocate for the petitioner submitted that notwithstanding persistent approaches were made, the petitioner has not been considered for appointment though he qualified and his name found place in the select list. It is a fact that in pursuance of General Administration Department Notification No.31483-Gen, dated 12.10.1989 as republished in the W.P.(C) No.28179 of 2023 Page 14 of 64 Board of Revenue, Odisha, Cuttack (Board of Examiners) Notification No.3303-XXIV-26/89-Exam., dated 20.12.1989, names of 72 selected candidates were enumerated including the petitioner. In the advertisement total number of vacancies was not disclosed. Due to ban on recruitment by Finance Department Letter No.28042, dated 22.03.1993, 2/3rd vacancies were not filled up. Such ban was in force till it was lifted by Letter No.FR 3/98—577 (240)/F., dated 05.01.1998. He, therefore, submitted that certain candidates approached the learned Odisha Administrative Tribunal and got appointment, but the petitioner was not extended the same benefit. Despite this Court granted opportunity to the petitioner to approach the appropriate authority vide Order dated 23.09.2022 passed in W.P.(C) No.24435 of 2022, no effective results could be yielded. He submitted that it is the prayer of the petitioner to direct the opposite parties to consider representation(s). 5.1. Sri Satrughna Dash, learned counsel for the petitioner has also drawn attention of this Court to paragraph-5 of the rejoinder affidavit filed by the petitioner, which reads thus: ―5. That the averment paragraph-6 is partly admitted. So far question cash crunch arises selected candidate were told to wait pursuant to the W.P.(C) No.28179 of 2023 Page 15 of 64 of the government. After state notification withdrawal of that notification other candidate amongst the select list published in 1990 Orissa Gazette were given employment, with the last employment being made in the year 2001 from 1990 list. Some of candidates who were employed are namely: Bishnu Priya Mohanty – 37 in select list – appointed in the year 1994. Rabindranath Samantaray – 42 in the list – in 1994. Smt. Sabita Kumari Jena – 21 – in 1993. Anup Kumar Mohanty – appointed in May, 2001‖ 5.2. Objecting to method of granting appointment to certain candidates from the select list, Sri Satrughna Dash, learned Advocate vehemently contested that the Odisha Reservation of Posts and Services (for Socially and Educationally Backward Classes) Act, 2008, came into force with effect from 07.02.2009; therefore, the Letter No.126-XII-1/96/Exam., dated 26.03.1996 of the Board of Revenue instructing the petitioner to indicate whether he belongs to Socially and Economically Backward Class is without comprehension. Furthermore, at the time of preparation of selection list reservation with respect to Socially Economically Backward Class was not under contemplation. 5.3. Under the aforesaid premises, it was argued that the petitioner should have been appointed as per select list W.P.(C) No.28179 of 2023 Page 16 of 64 published vide General Administration Notification dated 12.10.1989. 6. Sri Satyabrata Mohanty, learned Additional Government Advocate for the opposite parties refuting the contentions of the counsel for the petitioner submitted that the claim of the petitioner was rejected by virtue of Order dated 02.08.1999 passed in OA. No.2169 (C) of 1999 by the learned Odisha Administrative Tribunal which attained finality by dismissal of OJC No.13001 of 1999 vide Order dated 25.01.2000 of this Court. Civil Review No.10 of 2001 against said order also stood dismissed on 10.01.2018 and subsequently again after being restored, it is dismissed on 08.07.2022. 6.1. It is submitted by Sri Satyabrata Mohanty, learned Additional Government Advocate that in the present case in hand, although the select list was prepared way back in the year 1989 pursuant to the recruitment process initiated in the year 1988, by operation of Rule 8 of the Odisha Typist Service (Method of Recruitment and Condition of Service of Typist in the Office of Heads of Department) Rules, 1982, the said merit list/select list remained valid for a period of one year and lost its force thereafter. The innocuous prayer made, while seeking to withdraw the writ petition bearing W.P.(C) No.24435 of 2022, being acceded, the petitioner was granted liberty to approach the authority concerned. The prayer of the W.P.(C) No.28179 of 2023 Page 17 of 64 petitioner to direct the opposite parties for disposal of his representation does not survive inasmuch as his claim has attained finality in view of disposal of Civil Review No.10 of 2001 by Order dated 10.01.2018 without disturbing Order dated 25.01.2000 passed in OJC No.13001 of 1999. 6.2. Re-asserting the contents of the counter affidavit filed by the opposite parties, Sri Satyabrata Mohanty, learned Additional Government Advocate urged that the petitioner deserves to be imposed with exemplary cost as the writ petition is silent about the material particulars regarding O.A. No.2169(C) of 1999 filed by him along with two others and disposed of by the Odisha Administrative Tribunal way back in the year 1999. Said order has been set to rest by disposal of aforesaid writ petition and civil review. Legal position with respect to life of select list: 7. Before delving to address merit of the matter, it is felt expedient to take note of the legal position as to the period of validity of select list. 7.1. Culling out distinction between ―select list‖ and ―waiting list‖, a Division Bench of this Court in the case of Manoranjan Mohanty Vrs. Registrar, Odisha Administrative Tribunal, Cuttack Bench, 2024 (I) ILR-CUT 790 observed as follows: W.P.(C) No.28179 of 2023 Page 18 of 64 ―7. In A.P. Public Service Commission, Hyderabad Vrs. B. Sarat Chandra, (1990) 2 SCC 669, while considering the question of the meaning of selection, the apex court held as follows: list the ‗If the word ‗selection’ is understood in a sense meaning thereby only the final act of selecting candidates with preparation of for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications scrutiny of applications, rejections of defective applications or elimination of ineligible candidates conducting examinations, calling for interview or viva-voce and preparation list of successful candidates for appointment.‘ In view of such position, the process of selection began with issuance of advertisement and ended with the preparation of select list for appointment and following that the select list was prepared where the name of the petitioner did not find place. 8. In State of U.P. Vrs. Rafiquddin, AIR 1998 SC 162, the apex Court held that a select list prepared by the Public Service Commission on the basis of results of the competitive examination of a particular year should not normally be used after the results of a subsequent examination are declared. W.P.(C) No.28179 of 2023 Page 19 of 64 9. is prepared pursuant In State of U.P. Vrs. Nidhi Khanna, AIR 2007 SC 2074, the apex Court held that once a fresh select to a subsequent list advertisement, a person empanelled in the earlier select list issued under an earlier advertisement is not entitled to be appointed. 10. In Gujurat State Deputy Executive Engineers Association Vrs. State of Gujarat, (1994) Supp.2 SCC 591, the apex court held that 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 read on 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. Referring to Gujurat State Deputy Executive Engineers Association Vrs. State of Gujarat, (1994) Supp.2 SCC 591 the apex Court in Surinder Singh and others Vrs. State of Punjab and others, AIR 1998 SC 18, held that 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. 11. In Gujurat State Deputy Executive Engineers Association Vrs. State of Gujarat, (1994) Supp.2 SCC 591, it has been further held that the waiting list is operative only for the contingency that if any of the selected candidate does not join, then the person from the waiting list may be pushed up and appointed in the vacancy so caused or if there is some extreme exigency the Government may as a W.P.(C) No.28179 of 2023 Page 20 of 64 matter of policy decision pick up persons in order of merit from the waiting list. But, in the present case, even the waiting list was not prepared by the authority and also the name of petitioner does not find place in the select list. 12. In view of the meaning attached to the words ―waiting list‖ and ―select list‖, as mentioned above, the name of the candidate, who claims such benefit, must appear either of the lists. Admittedly, the name of the petitioner neither finds place in the ―select list‖ nor in the ―waiting list‖. Consequentially, even though vacancy has been made available under the SEBC category due to non-joining of Gagan Bihar Senapati, that ipso facto cannot be filled up by the petitioner. It is no doubt true that the petitioner has received information under the Right to Information Act, 2005 that he has secured 59 marks in the examination, but that ipso facto cannot entitle the petitioner to get the benefit of appointment as Forester, because his name does not find place either in the ―waiting list‖ or in the ―select list‖.‖ 7.2. In a Judgment reported as Jatinder Kumar Vrs. State of Punjab, (1985) 1 SCC 122 it has been held as under: ―12. *** This, however, does not clothe the appellants with any such right. They cannot claim as of right that the Government must accept the If, recommendation of however, the vacancy is to be filled up, the Government has to make appointment strictly adhering to the order of merit as recommended by the Public Service Commission. It cannot disturb the order of merit according to its own sweet the Commission. W.P.(C) No.28179 of 2023 Page 21 of 64 will except for other good reasons viz. bad conduct or character. The Government also cannot appoint a person whose name does not appear in the list. But it is open to the Government to decide how many appointments will be made. The process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus. We are supported in our view by the two earlier decisions of this Court in A.N. D‘Silva Vrs. Union of India AIR 1962 SC 1130 and State of Haryana Vrs. Subash Chander Marwaha (1974) 3 SCC 220.‖ 7.3. In R.S. Mittal Vrs. Union of India, (1995) 2 SCR 1127 it has been observed as follows: ―It is no doubt correct that a person on the select- panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select-panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select-panel.‖ 7.4. Taking note of said decision in R.S. Mittal (supra), in the case of Dinesh Kumar Kashyap Vrs. South East Central Railway, (2018) 14 SCR 947 the Hon’ble Supreme Court of India observed as follows: W.P.(C) No.28179 of 2023 Page 22 of 64 ―Our country is governed by the rule of law. Arbitrariness is an anathema to the rule of law. When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same. They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held. If they qualify the written test they have to again travel to appear for the interview and medical examination etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State.‖ 7.5. In case of State of Odisha Vrs. Raj Kishore Nanda, (2010) 6 SCC 777 = (2010) 7 SCR 301 it has been laid down thus: (extracted from SCC) ―14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per W.P.(C) No.28179 of 2023 Page 23 of 64 the statutory rules and in conformity with the constitutional mandate. 15. A Constitution Bench of this Court in Shankarsan Dash Vrs. Union of India, (1991) 2 SCR 567 = 1991 INSC 120 held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of the candidate’s name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. (See also Asha Kaul Vrs. State of J & K, Union of India Vrs. S.S. Uppal, Bihar Public Service Commission Vrs. State of Bihar, Simanchal Panda Vrs. State of Orissa, Punjab SEB Vrs. Malkiat Singh, Union of India Vrs. Kali Dass Batish, Divisional Forest Officer Vrs. M. Ramalinga Reddy, Subha B. Nair Vrs. State of Kerala, Mukul Saikia Vrs. State of Assam and S.S. Balu Vrs. State of Kerala). 16. A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. It is the settled legal proposition that no relief can be granted to the candidate if he approaches the Court after the expiry of the select list. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the court at a belated stage. (Vide J. Ashok Kumar Vrs. State of A.P., State of Bihar Vrs. Mohd. Kalimuddin, State of U.P. Vrs. Harish Chandra, Sushma Suri Vrs. Government of NCT of Delhi, State of U.P. Vrs. Ram Swarup Saroj, W.P.(C) No.28179 of 2023 Page 24 of 64 K. Thulaseedharan Vrs. Kerala State Public Service Commission, Deepa Keyes Vrs. Kerala SEB and Subha B. Nair).‖ 7.6. In the case of Umesh Kumar Pahwa Vrs. The Board of Directors of Uttarakhand Gramin Bank, (2022) 16 SCR 420 it has been observed as follows: ―14. The real issue, however, is whether the respondents were entitled to a writ of mandamus. This would depend on whether they have a vested right of appointment. Clearly the answer to this must be in the negative. In Punjab SEB Vrs. Malkiat Singh, (2005) 9 SCC 22 this Court held that the mere inclusion of candidate in a selection list does not confer upon them a vested right to appointment. The Court held: that the basis ‗4. *** the High Court committed an error in proceeding on the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash Vrs. Union of India, (1991) 3 SCC 47 which reads: ‗7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are W.P.(C) No.28179 of 2023 Page 25 of 64 fit, indefeasible right the successful candidates found acquire an 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 the appropriate reasons. And 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, can be and no discrimination 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 Vrs. Subash Chander Marwaha, (1974) 3 SCC 220 = (1974) 1 SCR 165, Neelima Shangla Vrs. State of Haryana, (1986) 4 SCC 268 or Jatinder Kumar Vrs. State of Punjab, (1985) 1 SCC 122 = (1985) 1 SCR 899 .‘ ***‖ if 7.7. It may be pertinent to take cognizance of a Division Bench decision of this Court rendered in Bhimasena W.P.(C) No.28179 of 2023 Page 26 of 64 Behera Vrs. State of Odisha, 2017 SCC OnLine Ori 418 = 124 (2017) CLT 776, wherein with regard to select list and its validity in absence of specified period in the statute, it has been observed as follows: ―23. We have gone through the order passed by the Tribunal and found that the Tribunal has came to conclusion that the list will be valid till it is exhausted and this finding has been given on the basis of the fact that the Rule 660(a) of the Police Manual Rule does not contain any provision or any stipulation regarding period of validity of the select list and in absence thereof the list will be said to be valid till the name in the list finally been exhausted, but according to our considered view this finding cannot be said to be sustainable in the eye of law for the following reasons: (i) (ii) If a candidate would fail in the pre-promotion test at the first instance, they would be deprived till the list would be exhausted and there might be a position that in the meanwhile he may superannuate from the service, hence that will be prejudicial to the interest of such employees, as such that would not be said to be proper process to held up a candidate to be considered once he failed in the selection process. If in the meanwhile new candidates, at the time of conducting the pre-promotional test would not have become eligible to be considered but in the meanwhile they became eligible, even after becoming eligible, they will W.P.(C) No.28179 of 2023 Page 27 of 64 from consideration of to participate their be deprived candidature the pre- promotional test since it will not be conducted till the entire list would be exhausted. in (iii) If this process would be said to be correct, the suitable candidate who had not been allowed to participate due to eligibility condition or any other reason, the best amongst all would not be selected. In that view of the matter it will be said to be contrary to the principle to search out most suitable person amongst all by selecting the candidate by choosing it from the large number of employees working. 24. We, on the basis of these reasons, are of the considered view that the finding given by the Tribunal regarding validity of the list till it finally exhausts is not proper hence the same is hereby set aside.‖ 7.8. In State of J.K. Vrs. Danish Zia Bhat, 2022 SCC OnLine J&K 513, it has been observed as follows: ―4. A short question raised in this appeal is as to whether the writ court was justified in directing for the appointment candidates from the wait list to the post of Junior Engineers against the vacancy arising due to resignation of the selected candidates who have joined. ***