IMPORTANT POINT
A candidate whose name appears in the select list on the basis of a competitive examination does not acquire a right of appointment in Government service in an existing or a future vacancy.

ORDER

Special leave granted. Heard the learned counsel for the parties.

2. By its Employment Notice No. 1/90 the Railway Recruitment Board invited applications for 308 vacancies in the post of Diesel Assistants in Palghat and Trivandrum Divisions of the Southern Railways. Among others the respondent applied for the above post, and on his success in the written examination and viva voce test held for the purpose, the Board included his name in the select list, published under Notification No. 4/91 dated March 25, 1991 and forwarded the same to the Southern Railway Administration recommending appointments therefrom. As in spite of his such inclusion in the panel he was not being given any appointment, he filed an application before the Central Administrative Tribunal, Ernakulam, contending inter alia, that even though in the select list his rank was 172 he had not been given appointment but persons lower in rank were appointed. Accordingly, he prayed for necessary directions for his appointment as a Diesel Assistant in accordance with his position in the panel.

3. In contesting the application the appellant-Railways contended that subsequent to the issuance of the notification dated March 25, 1991 the Railways had taken a policy decision that the requirement of Diesel Assistant staff had to be reduced owing to impending absorption of Steam surplus staff. As a result, the bottom 25 persons in the select list had to be withdrawn from the list recommended for employment. The Railways further contended that the select list was not prepared in order of merit and that the respondent s contention that his rank in the list was 172 was incorrect. Indeed, according to the Railways, the respondent was at the bottom of the list and consequently his name, besides others , had to be withdrawn on the reduction of the number of vacancies.

4. While accepting the Railways contention that the select list was not prepared in order of merit and conceding their right to adjust the number of vacancies according to requirement or according to policy, the Tribunal observed that there must be some protection given to those who had been declared successful. The Tribunal further observed that the least that was expected of the Railways was that such of the candidates who were successful but could not be accommodated as a result of reduction in the number of vacancies could be employed subsequently when the vacancies arose. In making the above observations the Tribunal quoted and relied upon the following passage from the judgment of this Court in Prem Prakash v. Union of India1 :

"Once a person is declared successful according to the merit list of selected candidates which is based on the declared number of vacancies the appointing authority has the responsibility to appoint him even if the number of vacancies undergoes a change after his name has been included in the list of selected candidates."

5. With the above observations the Tribunal directed the Southern Railways to consider the respondent for appointment as Diesel Assistant in any existing or next available vacancy on the basis that his name had been recommended by the Railway Recruitment Board for appointment. The above order of the Tribunal is under challenge in the present appeal at the instance of the Railways.

6. In the context of the facts of the instant case the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of a competitive examination acquires a right of appointment in Government service in an existing or a future vacancy. The above question has been answered by a Constitution Bench of this Court in Shankarsan Dash v. Union of India2, with the following words :

"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