Candidates even appearing in the panel of selected candidates do not have any legal right to appointment. In absence of published select list, the question of right to appointment does not arise.

JUDGMENT :-

T.S. Thakur, J.

1. Leave granted.

2. This appeal by special leave is directed against the judgment and order dated 29th January, 2010 passed by the Division Bench of the High Court of Judicature at Calcutta whereby in FMA No.1415/2009 filed by the respondent No.1 has been allowed, the order passed by the Single Judge of that Court set aside and the respondent-School Service Commission directed to act in terms of an earlier order dated 12th March 2009 passed by that Court in Writ Petition No. 6117(W) of 2004. The controversy arises in the following backdrop.

3. Against the vacant post of Headmaster at Howrah Siksha Niketan, as many as five candidates applied for appointment to the School Service Commission, West Bengal. The Commission found two of those applying for the post to be ineligible but short listed the remaining three for consideration. Kavindra Narayan Roy, one of the candidates found ineligible questioned the rejection of his candidature in Writ Petition No.6117 (W) of 2004 filed before the High Court of Calcutta and obtained an interim order staying publication of the panel. That order continued to remain operative for nearly five years till 2009 when the writ petitioner-Kavindra Narayan Roy withdrew the said petition as he had by that time attained the age of superannuation. The Single Judge of the High Court of Calcutta while dismissing the writ petition as withdrawn vacated all interim orders but directed that the period during which the panel could not be operated due to the interim order passed in the writ petition should be excluded for computing the life of the panel.

4. The School Service Commission, it appears, took no further steps in the matter nor was the panel published. This led to the filing of the two writ petitions one of which happened to be Writ Petition No.5866 (W) of 2009 filed by respondent No.1-Shri Arvind Kumar Rai in which the said petitioner sought a mandamus directing the School Service Commission to recommend his name for appointment against the available vacancy. His case was that since the Rajaram Choudhary who was placed at serial no.1 in the merit list had retired from service, he alone could be considered for appointment as he figured at serial No.2 of the list.

5. The above petition came up before Dipankar Datta, J. and was dismissed by an order dated 27th July, 2009 holding that since more than five years had elapsed ever since the selection process was initiated and since no panel had been published by the School Service Commission it was not possible to direct the Commission to appoint the petitioner-Shri Arvind Kumar Rai as Headmaster of the school. The Court further held that during the intervening period of five years several other candidates would have acquired eligibility for consideration/appointment against the post of Headmaster of school and that in fairness to all of them they ought to be given a chance to offer their candidature. The Court further held that as the panel had not been published the writ petitioner could not claim a recommendation as of right and that discretionary remedy under Article 226 of the Constitution could be exercised only when the Court was satisfied that it was equitable to do so.

6. The appellant-Vijoy Pandey, too, in the meantime, filed Writ Petition No.7310 (W) of 2009 in which he prayed for a direction to the respondents to rescind, cancel and withdraw the panel for the post of Headmaster of the school prepared on the basis of the interview held on 6th January, 2004. A Single Bench of the Calcutta High Court entertained the said petition and by an order dated 4th August, 2009 directed status quo to be maintained regarding appointment to the post of Headmaster. Three appeals came to be filed in the above background before the Division Bench of the High Court. One of these appeals filed by Arvind Kumar Rai was directed against order dated 27th July, 2009 passed by Dipankar Datta, J in Writ Petition No.5866 of 2009. The second appeal, t