Judgment

KULDIP SINGH, JJ.

( 1 ). SPECIAL leave granted.

( 2 ). Uttar Pradesh Bhumi Sudhar Nigam Limited (the Corporation) advertised for the post of Financial Controller in the year 1990. As a result of the interviews held by the selection committee, a panel of three names was recommended to the Corporation. One S. K. Sachdeva was at number one and Shiv Narain Gupta, respondent in the appeal herein, was at number two in thesaid panel. An appointment letter was issued to S. K. Sachdeva and he was asked to join the post by 31/10/1990. S. K. Sachdeva having failed to join the post, Shiv Narain Gupta represented before the Corporation that he, being next on the merit panel, be considered for appointment to the post. When no action was taken by the Corporation for considerable time, Shiv Narain Gupta filed a writ petition under Article 226 of the Constitution of India before the Lucknow bench of the Allahabad High court. The writ petition was allowed by a learned Single Judge of the High court and a mandamus was issued to the Corporation to appoint Shiv Narain Gupta to the post of Financial Controller. This appeal by the Corporation is against the judgment of the High court.

( 3 ). Mr Gopal Subramaniam, learned counsel -for the appellant has contended that a candidate included in the merit list has no indefeasible right to appointment even if a vacancy exists. The Corporation, according to him, was under no legal obligation to fill the post simply because a panel of the selected candidates had been prepared by the selection committee. It was further pointed out by the learned counsel that due to changed circumstances it was no longer viable for the Corporation to fill the post of the Financial Controller. We see considerable force in the contentions of learned counsel for the appellant.

( 4 ). A Constitution bench of this court in Shankarsan Dash v. Union of India referred to the earlier judgments of this court in State of Haryana v. Subash Chander Marwaha, Neelima Shangla v. State of Haryana and jatinder Kumar v. State of Punjab and laid down the law on the subject in the following terms :

"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. The 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, Neelima Shangla v. State of Haryana or Jatinder Kumar v. State of Punjab

( 5 ). A division bench of this court in Babita Prasad v. State of Bihar, where one of us (Dr A. S. Anand, J.) speaking for the bench dealt extensively with the rights of the candidates, included in a "merit list", to an appointment. This court following the Constitution bench in Shankarsan Dash case held as under : (SGC pp. 280-81, para 21

"thus, the Constitution bench while referring with approval the judgment in Subash Chander Marwaha case in unequivocal terms reiterated the settled law that the existence of vacancies does not confer a legal right on a selected candidate to be appointed unless the relevant rules provide specifically to the contrary. The State, of course, must all through act bona fi