JUDGMENT

SHARMA, J.:—This appeal was earlier heard by a Division Bench and was referred to a Constitution Bench 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 Government servant if a vacancy exists. Reference was made to the decisions in State of Haryana v. Subhash Chander Marwaha, (1974) 1 SCR 165, Miss Neelima Shangla v. State of Haryana, (1986) 4 SCC 268: and Jitendra Kumar v. State of Punjab, (1985) 1 SCR 899.

2. The appellant was selected in the combined Civil Services Examination held by the Union Public Service Commission for appointment to several services including the Indian Police Service (in short the IPS) and the Police Services Group B. The examination had been held in October, 1977 and the result was announced in May, 1978. A combined merit list for the IPS and the Police Services Group B was announced which included the name of the appellant. Out of the total number of 70 vacancies in the IPS announced to be filled up, 54 were of general category and the remaining 16 reserved for Scheduled Castes/ Scheduled Tribes candidates. The position of the appellant in the merit list was not high enough to be included in the IPS and he was offered appointment to the Delhi Andaman and Nicobar Police Service (hereinafter referred to as the DANIP) in Police Service Group B which he accepted. On account of several candidates allotted to Police Services Group B not joining, the position of the appellant improved and ultimately he was on the top of the list.

3. In June, 1979, 14 vacancies arose in the IPS due to selected candidates not joining the service. Out the same, 11 were in the general category and 3 in the reserved category. Three vacancies in the reserved category were filled up by the candidates who had been earlier appointed in DANIP Service, but no appointments were made to general category vacancies. The appellant, by a representation, prayed that these vacancies also should be filled up. The request was turned down, and the appellant moved the Delhi High Court by a writ application under Article 226 of the Constitution, which was dismissed in limine by the impugned order.

4. The case of the appellant is that since ultimately several vacancies in the general category of the IPS remained unfilled, he was entitled to be appointed in one of them, and the authorities were not right in rejecting his representation. It has been contended that after calculating the number of vacancies in the IPS, it was announced that appointments would be made in 54 vacancies of general category, and steps for recruitment were accordingly taken. The appellant along with others appeared at the elaborate test held for the purpose and he was found qualified for the appointment. In that situation the respondent could not refuse to fill up the vacancies and proceed to appoint the appellant in the Police Services Group B. It has been argued that the correct procedure in similar situation was followed with respect to the reserved category and the three vacancies arising in identical situation were filled up from the candidates selected for DANIP Service, and there was no justification to refuse similar benefit to the appellant in the general category.

5. According to the case of the Union of India, the process for the recruitment in question started in 1977, and the tentative service allocation for IPS was completed before the commencement of the foundational course in July, 1978. All the candidates selected for IPS excepting those who were eligible to appear at the examination for the Indian Administrative Service scheduled to be held in October-November, 1978, and such other candidates who had not been finally cleared on account of pending medical examination or character verification had to attend the foundational course. Candidates allocated to Police Services Group B were not required to undergo this course. By June, 1