By the Court.—The petitioner Ashok Kumar Tripathi aggrieved by the orders dated 9.11.2004 passed by the Central Administrative Tribunal dismissing his O.A. No. 10 of 1999, and dated 5.1.2007 rejecting his review petition has filed this writ petition under Article 226 of the Constitution of India.

2. The relevant facts giving rise to the present dispute are that in September 1993 Kendriya Vidyalaya Sangathan, Lucknow (hereinafter referred to as KVS) advertised 32 posts of Lower Divisional Clerk and 18 posts of Upper Divisional Clerk. The petitioner applied and appeared in written examination held in September 1994 and typing test held on 13.11.1994. A panel of 35 candidates was declared in May 1995 which included 27 general, 5 scheduled caste (hereinafter referred as S.C.) and 3 other backward classes (herein referred as OBC) category candidates. The name of the petitioner was at serial No. 25 in the list of general category candidates. Respondents issued appointment letters to 21 candidates which included 14 general, 3 OBC and 4 SC candidates. In the year 1996, 3 more candidates from the said panel were appointed which included 2 general and 1 S.C. candidate. Since there still existed vacancies but no more appointments were being made the petitioner filed O. A. No. 1490 of 1999 and after exchange of pleadings, the Tribunal dismissed application on 9.11.2004 holding that mere selection does not confer any right on the petitioner to claim appointment. The petitioner filed a review application No. 109 of 2004 but the same has also been rejected vide order dated 5.1.2007.

3. Learned Counsel for the petitioner contended that 32 vacancies were advertised and only 24 appointments were made meaning thereby that against all the advertised vacancies appointments were not made and the respondents have arbitrarily denied appointments to the petitioner who are selected candidates. He further contended that on the one hand the respondents did not make appointments from the said panel on the ground that after one year the panel lapsed though subsequently some more appointments were made from the same panel. After creation of Gwalior Region, though there were 13 vacancies and names of all the 11 candidates of the panel of general category were sent but only 7 appointments were made which shows arbitrariness on the part of the respondents.

4. We have heard learned Counsel for the petitioner and perused the record.

5. From a perusal of the copy of counter-affidavit filed before the Tribunal by KVS, we find that admittedly 32 vacancies for Kendriya Vidyalayas located within the jurisdiction of Lucknow region of KVS were advertised. When the process of recruitment was going on, some of the part of Lucknow Region was separated by creation of a new region i.e. Gwalior Region and a number of Kendriya Vidyalayas were placed thereunder, causing reduction of vacancies in Kendriya Vidyalayas remain in Lucknow region. On account of reduction of vacancies only 21 appointments were made in Lucknow region i.e. 14 General, 3 OBC and 4 SC candidates. Since life of the select list was one year and 3 more vacancies occurred in 1996, therefore, 3 more candidates from this panel were appointed which included 2 General and 1 SC candidates. In respect to Gwalior region, the Assistant Commissioner, Lucknow sent proposal in 1996 sending names of remaining candidates from the said panel wherefrom 7 candidates only could be appointed which are general.

6. The question now up for consideration is whether non appointment of petitioner by itself infringes his fundamental right under Article 16 of the Constitution of India. On his own showing it is admitted that against 32 vacancies advertised, the panel was prepared for 35 candidates out of which 31 have already been appointed. So far as the Lucknow region is concerned, it is categorically stated in para 5 of the counter-affidavit filed in review application before the Tribunal that due to shifting of some Kendriya Vid