A panel prepared for filling up posts in a cadre cannot be kept alive indefinitely and must be used within a reasonable period to avoid unjust exercise of executive power. The inclusion of a person's name in the panel does not vest an indefeasible right of appointment in him, and the State is not legally bound to fill up all or any of the vacancies. However, the State must act bona fide and respect the comparative merit of the candidates as reflected in the recruitment test.

G.C. Bharuka, J.

There are 8 petitioners in this writ application. Their prayer is for issuance of a writ of mandamus directing the respondents that till all the 242 persons empanelled for filling up of the posts of Stenographers (Personal Assistants) pursuant to 1982 Competitive Test Examination held in this regard are absorbed, no appointment on the said posts should be made through any other source.

2. According to the petitioners they alongwith others had appeared at the aforesaid Competitive Examination and were selected as is apparent from the list of successful candidates published in the Bihar gazette dated 26.10.1983. Out of the 242 successful candidates, 121 have already been appointed at different intervals. The grievance of the petitioners is that though sufficient vacancies exist on the posts for which they had been selected but they are being arbitrarily denied their right of being appointed to such posts. The petitioners complain that Government has arbitrarily sought to fill up the vacant posts by upgrading the posts of Steno-Typist to Personal Assistants by practising mala fide.

3. I do no propose to enter into the allegation of malafides or validity of up-gradation of the post of Steno-Typist to Personal Assistant because the beneficiaries of such up-gradation have not been made respondents in the present writ application and in their absence the validity of up-gradation or promotion accorded to them cannot be adjudged.

4. Keeping in view the rival contention made at the Bar the questions that fall for my consideration are :

(i) Whether the panel prepared in 1983 still survives?

(ii) Whether the inclusion of the name of a person in the panel vests a right of appointment in him; and,

(iii) Whether an empanelled person can claim a right of being appointed in respect of even future vacancies?

5. Coming to the first question, now it is well settled that a panel prepared for filling up the post in a cadre can be kept alive only for a reasonable period otherwise it may lead to unjust exercise of executive power offending Articles 14 and 16 of the Constitution of India. This matter has been dealt with by the Supreme Court in the case of State of Uttar Pradesh versus Ram Gopal, A.I.R. 1981 S.C. 1041, paragraph 15 whereof reads as under:

"There is no denying the fact that the rules regulating the conditions of service are within the executive power of the State or its legislative power under the proviso to Art. 309 but even so, such rules have to be reasonable, fair and not grossly unjust, if they are to survive the test of Articles 14 and 16 of the Constitution. A rule which contemplates that unless the list of 300 persons is exhausted no other person can be selected, obviously is unjust and it deprives other persons in the same situation of the opportunity of being considered for promotion,"

6. Keeping in view the law laid down by the Supreme Court in the case of State of Uttar Pradesh vrs. Ram Gopal (Supra) this Court in the case of Dr. Sheo Shankar Chand vrs. State of Bihar reported in 1990 (1) P.L.J.R. Page 298 has held that a panel prepared for appointment can be used even after expiry of 12 months for making appointment only under some very exceptional circumstances. This matter has also been considered again by this Court in C.W.J.C. No. 2296 of 1991 (Nilima Verma Vrs. State of Bihar & Others) disposed of on 5.3.1993 wherein Hon'ble S.B. Sinha, J. after taking into account the Government instructions in this regard has specifically held that the life of the panel expires on completion of one year from the date of its publication. In this view of the matter, in my opinion, no writ of mandamus can be issued directing the respondents to consider the case of the petitioners for appointment against any existing vacant post from the expired panel.

7. The second question relating to right of a person already selected has been dealt with by Constitution Bench of the Supreme Court in the case of Shankarsan Das vrs. Union