2018 Supreme(SC) 1181

SUPREME COURT OF INDIA
KURIAN JOSEPH, DEEPAK GUPTA, HEMANT GUPTA, JJ.
DINESH KUMAR KASHYAP & ORS. ETC. – APPELLANT(S)
Versus
SOUTH EAST CENTRAL RAILWAY & ORS. ETC. – RESPONDENT(S)
CIVIL APPEAL NOS. 11360-11363 OF 2018 (Arising out of SLP (Civil) Nos.29668-29671/2017 WITH CIVIL APPEAL NO. 11364 OF 2018 (@SLP (C) No. 6165 OF 2018)
Decided On : 27-11-2018

IMPORTANT POINTS
Majority view:
Selection does not confer any legal right to appointment.
It is open to employer not to fill all vacancies.
Discretion cannot be exercised arbitrarily.
Candidates for recruitment cannot be made to suffer for failure of an official to perform his duty.
No comparison can be made between the three different selection processes as regards cut-off marks.
Court should not question efficacy of policy but it should ensure its implantation

Headnote:Per Deepak Gupta, J. (For himself and Kurian Joseph, J.)

       (a) Service law – Selection and appointment – Selection does not confer any legal right to appointment – Open to employer not to fill all vacancies – However, when recommended candidates are available then employer would be liable to satisfy the Court as to the reason for not filling such vacancies. (Para 6)

       (1995) Suppl.2 SCC 230 – Relied upon

       (b) Administration of justice – Discretion – Cannot be exercised arbitrarily. (Para 6, 7)

       (c) Administrative law – Failure of an official to perform his duty – Candidates for recruitment cannot be made to suffer. (Para 8, 9)

       (d) Administration of justice – Candidates promptly approaching CAT and High Court – Validity of panel expiring during pendency of case in Court – Candidates cannot be made to suffer for pendency of case before a court. (Para 11)

       (e) Administration of justice – SECR conducting three selection processes – Every selection process has a different examination with different level of assessment – No comparison can be made between the three different selection processes as regards cut-off marks. (Para 12)

       (f) Administration of justice – Policy and implementation – Court should not question efficacy of policy – However, Courts should ensure implantation of the policy – More so when no reason has been given for the action. (Para 13)

       Per Hemant Gupta, J. (Dissenting)

       (g) Service law – Selection – Circular dated 02.07.2008 requiring 20% candidates be called to be called for document verification – At best they are will be waiting list – Constituting replacement panel – To be used if candidates from original panel do not turn up. (Para 10)

       1995 Supp (2) SCC 230 – Referred

       (h) Service law – Selection and appointment – Candidates appearing in select list – Do not acquire right to appointment – State has a right to fill or not the vacancies – Not filling 624 posts, held, not arbitrary – Power of judicial review cannot be exercised to substitute decision of the Railways to direct candidates in the waiting list to be appointed. (Para 11, 14, 18, 19)

       (1974) 3 SCC 220; (1985) 1 SCC 122; (1991) 3 SCC 47; (2009) 2 SCC 479; (2016) 6 SCC 532; (2006) 1 SCC 779 – Relied upon

       (i) Service law – Selection – Validity of select panel – Up to two years – Held, could be extended by General Manager by one year in case of administrative exigencies – Instantly, validity of the select panel came to an end by the afflux of time – Held, there cannot be any order to appoint the persons from such select list. (Para 20, 22)

       Civil Appeal No. 11149 of 2018 – Relied upon

       Facts of the case;

       Respondent No.1, South East Central Railway issued an advertisement on 15.12.2010 inviting applications for filling up 5798 posts in the pay scale of Rs.5200Rs. 20,200 + Grade Pay of Rs.1800/- in Raipur, Bilaspur and Nagpur divisions and workshops. The claim of the original writ petitioners who filed applications before the Central Administrative Tribunal (for short CAT) was that as per the existing instructions the select list was prepared with 20% extra candidates. Therefore, the result of 6995 candidates was declared who were successful. The appellants fall in the category of extra 20%. The SECR did not make the appointments from these 20% extra candidates though 624 posts remained unfilled in the general category itself. The appellants who fall in the 20% category of extra candidates filed applications before the CAT praying that the SECR be directed to fill in the unfilled vacancies from this list of 20% candidates. This application was rejected by the Tribunal. The writ petition filed by the appellants was also rejected.

       Finding of the Court (majority view):

       Filling all vacancies or not is discretion of the employer, however, the discretion should not be exercised arbitrarily.

       Minority view:

       No reason to interfere in the decision-making process of the Railways, so as not to appoint the appellants against Group D posts advertised on 15.12.2010.

       Result (majority view): Appeal allowed. Minority view: Appeal dismissed.