{"id":23777,"date":"2006-10-19T00:00:00","date_gmt":"2006-10-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-b-valluvan-ors-on-19-october-2006"},"modified":"2018-02-28T05:01:26","modified_gmt":"2018-02-27T23:31:26","slug":"union-of-india-ors-vs-b-valluvan-ors-on-19-october-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-b-valluvan-ors-on-19-october-2006","title":{"rendered":"Union Of India & Ors vs B. Valluvan & Ors on 19 October, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India & Ors vs B. Valluvan & Ors on 19 October, 2006<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, Dalveer Bhandari<\/div>\n
           CASE NO.:\nAppeal (civil)  4554 of 2006\n\nPETITIONER:\nUnion of India & Ors\n\nRESPONDENT:\nB. Valluvan & Ors\n\nDATE OF JUDGMENT: 19\/10\/2006\n\nBENCH:\nS.B. Sinha & Dalveer Bhandari\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of SLP (C) No.7903 of 2004)<\/p>\n
S.B. Sinha, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tThe Department of Personnel and Training, Andaman & Nicobar
\nAdministration (Administration) issued a circular letter, stating :\n<\/p>\n
“As you may be aware, as per the instructions of the
\nGovernment of India, whereas validity of panel prepared
\nagainst promotion quota is generally limited to one year,
\nthere is no fixed life of the panel against direct
\nrecruitment post.  Accord\ting to the Govt. of India’s
\ninstructions therefore 3 panel prepared for direct
\nrecruitment should not be unduly inflated and should take
\ncare of immediate vacancies and those which are likely to
\noccur in the near future.  A maximum of ten percent
\nadditional persons can be kept on the panel against the
\nexisting vacancies at the time of preparation pf panel or
\nvacancies likely to occur in the near future.  Such a
\nprovision has been kept so that government can obtain
\nthe services of better qualified persons if they become
\navailable in due course of time.\n<\/p>\n
\tIt has however been observed that these
\ninstructions of the Government of India are not even
\nfollowed by all the Departments of this Administration
\nwhile preparing panel for direct recruitment as well as for
\npromotion.\n<\/p>\n
\tIt is, therefore, brought to the notice of all the
\nDepartments that in future panel for promotion as well as
\nfor direct recruitment against various categories of posts
\nshould be prepared strictly in accordance with the
\ninstructions of the Govt. of India issued from time to
\ntime.”\n<\/p>\n
\tThree vacancies for the post of Pharmacist were notified in the year
\n1999.  Applications were invited from the eligible candidates.  In the
\nadvertisement issued therefor, it was categorically stated :\n<\/p>\n
“EMPLOYMENT NEWS<\/p>\n
Applications are invited from the eligible local
\ncandidates for the post of Pharmacist Under the A & N
\nHealth Department, Port Blair<\/p>\n
a)\tNo. of vacancies :-\t3 (three)”\n<\/p>\n
\tThe 1st Respondent together with others, pursuant to or in furtherance
\nof the said advertisement filed application.  Interviews therefor were held in
\n1999.  A select list of three candidates was prepared on the basis of the
\nrecommendations made by the Selection Committee on 27.5.1999.  The said
\nthree persons accepted the offer and joined services. The Selection
\nCommittee, however, made a list of 19 candidates for future appointments
\noccurring if any, in the said year.  The said select list, according to
\nAppellant, was prepared in violation of the purported statutory instructions
\ndated 26.6.1992.  All the three vacancies in the post of Pharmacist having
\nbeen filled up, the said panel was directed to be cancelled by an order dated
\n7.12.1999.  Several candidates purported to be aggrieved by and dissatisfied
\ntherewith, filed an Original Application before the Central Administrative
\nTribunal, inter alia, contending that as the panel was drawn for future
\nvacancies, they were entitled to be appointed against the vacancies occurring
\nthereafter.  It was furthermore contended that as several new posts were
\nlikely to be created and\/or likely to fall vacant in the near future, they should
\nbe directed to be appointed in such vacancies.  During pendency of the said
\napplication, another advertisement was issued on 17.5.2000 for filling up of
\none vacancy, which occurred in the year 2000.  Interview was also held on
\n26.6.2000 and the said vacancy had also been filled up.  The said fact was
\nbrought on record by Appellants herein.  By an order dated 13.9.2002, the
\nTribunal rejected the said Original Application, inter alia, opining :\n<\/p>\n
“…..In the present case, however only 3 candidates had
\nfigured in the select list for immediate appointment and
\nthe panel of candidates in the waiting list had been
\ncancelled on the ground that one of the candidates in that
\npanel was not qualified and that the preparation of the
\npanel was not in accordance with the Government of
\nIndia\/A&N Administration instructions.”\n<\/p>\n
\tIt was further observed :\n<\/p>\n
“…..When only three vacancies had been advertised, the
\npreparation of a waiting list containing 19 candidates
\ndoes not appear to be either legal or reasonable.  Besides
\nin this case, against the three advertised vacancies, the
\nthree selected candidates have been appointed.  In any
\ncase, the contention of the applicants that this panel
\nshould be operated even beyond a period of one year is
\nrejected as they themselves have stated that it should be
\noperated for one year which is as per the rules.  In the
\nfacts and circumstances of the case; the impugned order
\nof cancellation issued by the respondents dated 7.12.1999
\ncannot be held to be arbitrary, illegal or against the rules
\nwhich justifies any interference in the matter.”\n<\/p>\n
\tThe said order came to be questioned before the Calcutta High
\nCourt.  A Division Bench of the said Court dismissed the said writ petition,
\nstating :\n<\/p>\n
\t“Our attention was not drawn to any statutory or
\notherwise rules authorizing the authority concerned to
\nkeep the panel alive after supplying the notified
\nvacancies.  That being the position, it is well settled in
\nlaw that the panel stood lapsed the moment notified
\nvacancies had been filled up.”\n<\/p>\n
\tA review application was filed by the 1st Respondent and by reason of
\nthe impugned judgment, the same was allowed by another Division Bench of
\nthe said Court, stating :\n<\/p>\n
\t“Having regard to the unusual nature of the case,
\nwe have devoted considerable time to the submissions
\nmade on behalf of the parties, both in support of the
\napplication and against it, and we are convinced that the
\norder of the Division Bench sought to be reviewed
\nsuffers from errors apparent on the face of the record.
\nWe are of the view that while expressing the correct legal
\nposition, the Division Bench appears to have applied the
\nsaid provisions erroneously in the facts of this case, since
\nthe list of selected candidates was not confined only to
\nthe immediate vacancies but also in respect of future
\nvacancies as well.  We are inclined to agree with Mr. Roy
\nthat the first three names were in respect of immediate
\nvacancies and the object of preparing a list other names
\nwas for the definite purpose of filling up future
\nvacancies.  It is not as if there was no intention that the
\npanel was to be utilized at a later stage and was meant
\nonly for filling up the three immediate vacancies, which
\nwere then existing under one and the same selection.”\n<\/p>\n
\tMr. B. Datta, the learned Additional Solicitor General appearing on
\nbehalf of Union of India submitted that as the life of the panel was one year,
\nthe impugned judgment cannot be sustained.\n<\/p>\n
\tMr. Gaurav Jain, learned counsel appearing on behalf of Respondents,
\non the other hand, urged that keeping in view the fact that Respondent No.1
\nhas been appointed in August, 2005, pursuant to the judgment of the High
\nCourt, this Court may not exercise its discretionary jurisdiction under Article
\n136 of the Constitution of India.\n<\/p>\n
\tRecruitment process, as is well known, must be commensurate with
\nthe statute or the statutory rule operating in the field.  We have noticed
\nhereinbefore, advertisement was made for three posts.  It was not indicated
\ntherein that another panel for filling up of the future vacancies was to be
\nprepared by the Selection Committee.  In the select list prepared by the
\nSelection Committee, the name of 1st Respondent was at Serial No.4.
\nRecommendations were made containing the names of 19 persons for future
\nvacancies.  Only because a panel has been prepared by the Selection
\nCommittee, the same by itself, in our opinion, would not mean that the same
\nshould be given effect to irrespective of the fact that there was no such rule
\noperating in the field.  The Selection Committee was bound to comply with
\nthe selection process only in terms of the extant rules.  It was bound to
\nfollow the stipulations made in the advertisement itself.  Even in the
\nadvertisement it was not indicated that a select list would be prepared for
\nfilling up future vacancies.  The Selection Committee, having been
\nappointed only for recommending the names of suitable candidates, who
\nwere fit to be appointed, could not have embarked upon the question as
\nregards likelihood of future vacancy.\n<\/p>\n
\tThe Review Bench of the High Court posed unto itself a wrong
\nquestion.  It did not say how an error apparent on the face of the record had
\nbeen committed.  It did not assign sufficient or cogent reason to hold as to
\nhow the Original Application before the Tribunal would have been
\nmaintainable if the petitioners had no existing legal right.  The 1st
\nRespondent did not have any legal right to be appointed.  He filed an
\napplication pursuant to the said advertisement.  It is not his case that his
\napplication had not been considered.  He did not raise any plea of unfair
\ntreatment.  No malafide was also alleged.\n<\/p>\n
\tLife of a panel, as is well known, must be for a limited period.  It is
\ngoverned by the statutory rules.  From the circular letter dated 26.6.1992 it is
\nevident that ordinarily the life of the panel should be for one year.  What had
\nbeen indicated therein was that the panel prepared for recruitment should not
\nbe unduly inflated.  Vacancies should ordinarily be notified keeping in view
\nthe immediate future need.  It has categorically been stated that only upto a
\nmaximum of 10 additional persons were kept in a panel against the existing
\nvacancies which were likely to occur in future.  The said circular letter was
\nmeant to be applied in a case where, thus, more than 10 vacancies were
\nnotified.  It did not have any universal application.  By reason of the said
\ncircular letter, the ordinary life of the panel was not to be extended.  Thereby
\nno new practice or rule was brought into force.\n<\/p>\n
\tIn Madan Lal & Ors. vs. State of J & K & Ors. [(1995) 3 SCC
\n486], this Court held :\n<\/p>\n
\t“It is no doubt true that even if requisition is made
\nby the Government for 11 posts the Public Service
\nCommission may send merit list of suitable candidates
\nwhich may exceed 11. That by itself may not be bad but
\nat the time of giving actual appointments the merit list
\nhas to be so operated that only 11 vacancies are filled up,
\nbecause the requisition being for 11 vacancies, the
\nconsequent advertisement and recruitment could also be
\nfor 11 vacancies and no more. It is easy to visualise that
\nif requisition is for 11 vacancies and that results in the
\ninitiation of recruitment process by way of
\nadvertisement, whether the advertisement mentions
\nfilling up of 11 vacancies or not, the prospective
\ncandidates can easily find out from the Office of the
\nCommission that the requisition for the proposed
\nrecruitment is for filling up 11 vacancies. In such a case a
\ngiven candidate may not like to compete for diverse
\nreasons but if requisition is for larger number of
\nvacancies for which recruitment is initiated, he may like
\nto compete. Consequently the actual appointments to the
\nposts have to be confined to the posts for recruitment to
\nwhich requisition is sent by the Government. In such an
\neventuality, candidates in excess of 11 who are lower in
\nthe merit list of candidates can only be treated as wait
\nlisted candidates in order of merit to fill only the eleven
\nvacancies for which recruitment has been made, in the
\nevent of any higher candidate not being available to fill
\nthe 11 vacancies, for any reason. Once the 11 vacancies
\nare filled by candidates taken in order of merit from the
\nselect list will get exhausted, having served its purpose.\n<\/p>\n
\t\t\t*\t\t*\t\t*\t\t*
\n\tIn the present case as the requisition is for 11 posts
\nand even though the Commission might have sent list of
\n20 selected candidates, appointments to be effected out of
\nthe said list would be on 11 posts and not beyond 11
\nposts, as discussed by us earlier. This contention will
\nstand accepted to the extent indicated hereinabove.”\n<\/p>\n
\tIn State of U.P. & Ors. vs. Harish Chandra & Ors.<\/a> [(1996) 9 SCC
\n309], it was opined :\n<\/p>\n
\t“Coming to the merits of the matter, in view of the
\nStatutory Rules contained in the Rule 26 of the
\nRecruitment Rules the conclusion is irresistible that a
\nselect list prepared under the Recruitment Rules has its
\nlife only for one year from the date of the preparation of
\nthe list and it expires thereafter. Rule 26 is extracted
\nhereinbelow in extenso :\n<\/p>\n
\t“26. Appointment by appointing authority.- The
\nselect list referred to in Sub-rules (6) and (7) of Rule 23
\nshall be forwarded by the Selection Committee to the
\nappointing authority mentioning the aggregate marks
\nobtained at the selection by each candidates. The name of
\ngeneral and reserve candidates shall be arranged by the
\nappointing authority in a common list according to the
\nmerit of the candidates and the appointment shall be
\noffered in the order in which the names are arranged in
\nthe list shall hold good for a period of one year from the
\ndate of selection.”\n<\/p>\n
 \tNotwithstanding the aforesaid Statutory Rule and
\nwithout applying the mind to the aforesaid Rule the High
\nCourt relying upon some earlier decisions of the Court
\ncame to hold that the list does not expire after a period of
\none year which on the face of it is erroneous. Further
\nquestion that arises in this context is whether the High
\nCourt was justified in issuing the mandamus to the
\nappellant to make recruitment of the Writ Petitioners.
\nUnder the Constitution a mandamus can be issued by the
\nCourt when the applicant establishes that he has a legal
\nright to the performance of legal duty by the party against
\nwhom the mandamus is sought and said right was
\nsubsisting on the date of the petition. The duty that may
\nbe enjoined by mandamus may be one imposed by the
\nConstitution or a Statute or by Rules or orders having the
\nforce of law. But no mandamus can be issued to direct
\nthe Government to refrain from enforcing the provisions
\nof law or to do something which is contrary to law.”\n<\/p>\n
\tYet again, in Surinder Singh & Ors. vs. State of Punjab & Anr.
\n[(1997) 8 SCC 488], it was stated :\n<\/p>\n
“It is in no uncertain words that this Court has held
\nthat it would be an improper exercise of power to make
\nappointments over and above those advertised. It is only
\nin rare and exceptional circumstances and in emergent
\nsituation that this rule can be deviated from. It should be
\nclearly spelled out as to under what policy such a
\ndecision has been taken. Exercise of such power has to be
\ntested on the touchstone of reasonableness. Before any
\nadvertisement is issued, it would, therefore, be incumbent
\nupon the authorities to take into account the existing
\nvacancies and anticipated vacancies. It is not as a matter
\nof course that the authority can fill up more posts than
\nadvertised.”\n<\/p>\n
\tThe Division Bench of the High Court committed a serious error in
\nentering into the merit of the matter while exercising its review jurisdiction.
\nThe court’s jurisdiction to review its own judgment, as is well known, is
\nlimited.  The High Court, indisputably, has a power of review, but it must be
\nexercised within the framework of Section 114 read with Order 47 of the
\nCode of Civil Procedure.  The High Court did not arrive at a finding that
\nthere existed an error on the face of the record.  In fact, the High Court,
\ndespite noticing the argument advanced on behalf of Union of India that the
\n1st Respondent had no legal right to be appointed, proceeded to opine that
\nthe panel prepared for filling up of future vacancies should be given effect
\nto.  The review of the High Court was not only contrary to the circular letter
\nissued by Union of India, but also contrary to the general principles of law.
\n  \tThe life of a panel ordinarily is one year.  The same can be extended
\nonly by the State and that too if the statutory rule permits it to do it.  The
\nHigh Court ordinarily would not extend the life of a panel.  Once a panel
\nstands exhausted upon filling up of all the posts, the question of enforcing a
\nfuture panel would not arise.  It was for the State to accept the said
\nrecommendations of the Selection Committee or reject the same.  As has
\nbeen noticed hereinbefore, all notified vacancies as also the vacancy which
\narose in 2000 had also been filled up.  As the future vacancy had already
\nbeen filled up in the year 2000, the question of referring back to the panel
\nprepared in the year 1999 did not arise.  The impugned judgment, therefore,
\ncannot be sustained.\n<\/p>\n
\tComing now to the plea of learned counsel that Respondent No.1 has
\nbeen appointed in August, 2005, in our opinion, is not of much significance.
\nIf he has been appointed pursuant to the order of the High Court, the same
\ninvariably would be subject to the result of this appeal.  Respondent No.1
\ndid not have any legal right to be appointed even out of the said panel.  His
\nposition was at Serial No.4 and not even at Serial No.1.  Therefore, there
\nwere three persons in the panel above him.  The High Court, therefore,
\ncommitted a manifest error in issuing the impugned directions. Sympathy
\nalone, in our opinion, cannot be a ground to allow the High Court judgment
\nto be sustained, although, it is ex facie illegal.  {See Maruti Udyog Ltd. vs.
\nRam Lal & Ors.<\/a> [(2005) 2 SCC 638].}\t<\/p>\n
\tFor the reasons aforementioned, the impugned judgment cannot be
\nsustained.  It is set aside accordingly.  The appeal is allowed.  In the facts
\nand circumstances of the case, however, there shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India & Ors vs B. Valluvan & Ors on 19 October, 2006 Author: S Sinha Bench: S.B. Sinha, Dalveer Bhandari CASE NO.: Appeal (civil) 4554 of 2006 PETITIONER: Union of India & Ors RESPONDENT: B. Valluvan & Ors DATE OF JUDGMENT: 19\/10\/2006 BENCH: S.B. Sinha & Dalveer Bhandari JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-23777","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India & Ors vs B. 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