ivil Appeal No 8613 of 1983
From the Judgment and Order dated 2111981 of the Delhi High Court in Civil Writ No 41 of 1981
PKGoswamy and Kailash Vasudev for the Appellant
VC Mahajan Ashok Bhan and CV Subba Rao for the Respondent
This appeal was earlier heared by a Division Bench and was referred to a Constitution Bench for examining the question whether a candidate whose name appears in the merit list on the basis of a competitive examination acquires indefeasible right of appointment as a Government servant if a vacancy exists
Reference was made to the decision in State of Haryana vs Subhash Chander Marwaha and Others   Miss Neelima Shangla PhDv
State of Haryana and Others  and Jitendra Kumar and Others vs State of Punjab and Others
1985 1SCR 899
570 2
The appellant was selected in the combined Civil Services Examination held by the Union Public Service Commission for appointment to several services including the Indian Police Service in short the IPS  and the Police Services Group B 
The examination had been held in October 1977 and the result was announced in May 1978
A combined merit list for the IPS and the Police Services Group B  was announced which included the name of the appellant
Out of the total number of 70 vacancies in the IPS announced to be filled up 54 were of general category and the remaining 16 reserved for Scheduled CastesScheduled Tribes candidates
The position of the appellant in the merit list was not high enough to be included in the IPS and he was offered appointment to the Delhi Andaman and Nicobar police Service hereinafter referred to as the DANIP in Police Service Group B  which he accepted
On account of several candidates allotted to Police Services Group B not Joining the position of the appellant improved and ultimately he was on the top of the list
In June 1979 14 Vacancies arose in the IPS due to selected candidates not joining the service
Out of the same 11 were in the general category and 3 in the reserved category
Three vacancies in the reserved category were filled up by the candidates who had been earlier appointed in DANIP Service but no appointments were made to general category vacancies
The appellant by a representation prayed that these vacancies also should be filled up
The request was turned down and the appellant moved the Delhi High Court by a writ application under Article 226 of the Constitution which was dismissed in limine by the impugned order
The case of the appellant is that since ultimately several vacancies in the general category of the IPS remained unfilled he was entitled to be appointed in one of them and the authorities were not right in rejecting his representation
It has been contended that after calculating the number of vacancies in the IPS it was announced that appointments would be made in 54 vacancies of general category and steps for recruitment were accordingly taken
The appellant along with others appeared at the elaborate test held for the purpose and he was found qualified for the appointment In that situation the respondent could not refuse to fill up the vacancies and proceed to appoint the appellant in the Police Services Group B 
It has been argued that the correct procedure in similar situation was followed with respect to the reserved category and the three vacancies arising in identical situation were filled up from the candidates selected for DANIP Service and 571 there was no justification to refuse similar benefit to the appellant in the general category
According to the case of the Union of India the process for the recruitment in question started in 1977 and the tentative service allocation for IPS was completed before the commencement of the foundational course in July 1978
All the candidates selected for IPS excepting those who were eligible to appear at the examination for the Indian Administrative Service scheduled to be held in October November 1978 and such other candidates who had not been finally cleared on account of pending medical examination or character verification had to attend the foundational course
Candidates allocated to Police Services Group B  were not required to undergo this course
By June 1978 7 more vacancies arose on account of candidates not joining IPS due to various reasons and 7 persons in order of merit from the joint list of the IPS and the Police Services Group B  were allowed to fill up these vacancies
The last one in this list of 7 candidates was Shekhar Singh at serial No 94
The appellant could not get a chance as his position was 100th
This process of final service allocation was closed on 24101978 or at the latest by 4111978 in view of the process for recruitment for the year 1978 which had already started
The additional vacancies arising latertherefore remained unfilled
The entire procedure which is followed for recruitment to the Services has been given in several affidavits of the respondent and detailed information in this regard was supplemented by a further affidavit during the hearing of the hearing of the appeal filed in the light of observations of the Bench
6Dealing with the appointments to reserved categoryit has been stated in the counter affidavit that the process which was followed in connection with the general category and which was being earlier followed for the reserved category also was relaxed in pursuance of a policy decision taken after examining all relevant circumstances and materials in regard to this category including the strength of the reserve category in the IPS the result of the examinations for the year 19751976 and 1977
The procedure which was being followed in the past was not relaxed in regard to the general category on account of vital differences obtaining in the relevant conditions in the two categories and the appellant s plea of alleged discrimination does not have any merit
Similarly the case of one Km
Vandana Srivastava cited by the appellant has also been distinguished and Mr Goswami therefore  did not pursue this plea any further in his final reply
572 7
It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied
Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post
Unless the relevant recruitment rules so indicate the State is under no legal duty to fill up all or any of the vacancies
However it does not mean that the State has the licence of acting in an arbitrary manner
The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons
And if the vacancies or any of them are filled up the State is bound to respect the comparative merit of the candidates as reflected at the recruitment test and no discrimination can be permitted
This correct position has been consistently followed by this Court and we do not find any discordant note in the decisions in State of Haryana vs Subhash Chander Marwaha and Others   Miss Neelima Shangla vs State of Haryana and Others  and Jitendra Kumar and Others vs State of Punjab and Others 8
In State of Haryana vs Subhash Chander Marwaha and Others supra 15 vacancies of Subordinate Judges were advertised and out of the selection list only 7 who had secured more than 55 marks were appointed although under the relevant rules the eligibility condition required only 45 marks
Since the High Court had recommended earlier to the Punjab Government that only the candidates securing 55 marks or more should be appointed as Subordinate Judges the other candidates included in the select list were not appointed
They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable
The writ application was allowed
While reversing the decision of the High Court it was observed by this Court that it was open to the Government to decide how MANY appointments should be made and although the High Court had appreciated the position correctly it had somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies  
It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate
Similarly the claim of some of the candidates selected for appointment who were petitioners in Jitendra Kumar and Others vs State of Punjab and Others was turned down holding that it was open to the Government to decide how many appointments would be made
The plea of arbitrariness was rejected in view of the facts of the case and it was had that the candi 573 dates did not acquire any right merely by applying for selection or even after selection
It is true that the claim of the petitioner in the case of Miss Neelima Shangla vs State of Haryana was allowed by this Court but not on the ground that she had acquired any right by her selection and existence of vacancies
The fact was that the matter had been referred to the Public Service Commission which sent to the Government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up
The Government accordingly made only 17 appointments and stated before the Court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate
In this background it was observed that it is of course open to the Government not to fill up all the vacancies for a valid reason but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates and there must be a conscious application of mind by the Government and the High Court before the number of persons selected for appointment is restricted
The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment
None of these decisions therefore supports the appellant
Mr Goswami appearing in support of the appeal has contended that in view of the relevant statutory rules the authorities were under a duty to continue with the process of filling up all the vacancies until none remained vacant
Reference was made to r 4 of the Indian Police Service Cadre Rules 1954 rr
346 and 7 of the Indian Police Service Recruitment Rules 1954 and rr 21a 21c 8 and 13 of the Indian Police Service Appointment by competitive Examination Regulations 1965
We do not think any of these rules comes to the aid of the appellant
Rule 3 of the Cadre Rules directs constitution of separate cadres for States or group of States and r 4 empowers the Central Government to determine the strength in consultation with the State Governments
The strength has to be re examined at intervals of 3 years
Rule 3 of Recruitment Rules deals with the constitution of the Service and r 4 the method of recruitment
Rules 6 and 7 give further details in this regard
The learned counsel could not point out any provision indicating that all the notified vacancies have to be filled up
Similar is the position with respect to the Competitive Examination Regulations
Regulation 21a defines available vacancies as vacancies determined by the Central Government to be filled on the results of the examination described in Regulation 21a
Regulation 8 prescribes that the candidates would be considered for appointment to the available 574 vacancies subject to provisions 9 to 12 and Regulation 13 clarifies the position that a candidate does not get any right to appointment by mere inclusion of his name in the list
The final selection is subject to satisfactory report on the character antecedent and suitability of the candidates
We therefore reject that the claim that the appellant had acquired a right to be appointed against the vacancy arising later on the basis of any of the rules
The main contention on behalf of the appellant has been however that the authorities in keeping the vacancies arising later unfilled acted arbitrarily
Mr Goswami referred to several documents annexed to the special leave petition and affidavits filed on behalf of the parties and contended that although appointments of many candidates in the other services were made in the later vacancies the vacancy in the Indian Police Service which subsequently became available to the appellant was refused without any just cause resulting in illegal discrimination
This was emphatically denied on behalf of the respondent
Since the matter did not appear to be free from ambiguity on the basis of the affidavits before us we decided to examine the factual aspects more thoroughly by examining the other available materials on the records of the Union of India and accordingly the learned counsel for the respondent got the relevant departmental files called
Two further affidavits were also filed along with photostat copies of a large number of documents which we examined at some length with the aid of the learned advocates for both sides
From the materials produced before us it is fully established that there has not been any arbitrariness whatsover on the part of the respondent in filling up the vacancies in question or the other vacancies referred to by the learned counsel for the appellant
The process of final selection had to be closed at some stage as was actually done
A decision in this regard was accordingly taken and the process for further allotment to any vacancy arising later was closed
Mr Goswami relied upon certain appointments actually made subsequent to this stage and urged that by those dates the further vacancies in the Indian Police Service had arisen to which the appellant and the other successful candidates should have been adjusted
We do not find any merit in this contention
It is not material if in pursuance of a decision already taken before closing the process of final selection the formal appointments were concluded later
What is relevant is to see as to when the process of final selection was closed
Mere completing the formalities cannot be of any help to the appellant
We do not consider it necessary to mention all the details in this connection available from the large number of documents which we closely examined during the hearing at considerable length and do not 575 have any hesitation in rejecting the argument of the learned counsel in this regard based on the factual aspect
So far the decision to adopt a different policy with respect to filling up of the reserved vacancies is concerned the same is justified on account of the special circumstances mentioned in the respondent s affidavits
The decision to depart from the confirmed policy was taken after a consideration by the authorities of the position in regard to unavailability of qualified candidates from year to year adversely affecting the desired strength of the reserved candidates in the services and cannot be condemned on the grounds of arbitrariness and illegal discrimination
In the result we do not find any merit in the appeal which is accordingly dismissed but in the circumstances without costs
NPV Appeal dismissed


Summary:
Under Rule 2 of the Bihar Public Works Department Code the Governor of Bihar took a decision on 741958 providing that 25 of the posts of Assistant Engineers in the Bihar Engineering Service Class II the Service were to be filled by promotion subject to availability of suitable hands from Overseers in the Bihar Subordinate Engineering Service Irrigation Department and 75 of the posts were to be filled by direct recruitment to the Service
Respondents No 1 to 5 in both these appeals were appointed as Assistant Engineers in the Service on the recommendation of the Bihar Public Service Commission in the year 1961 and the appellants in Civil Appeal No 233 of 1978respondents No 6 to 23 in Civil Appeal No 232 of 1978 who had been working as Overseers in the Bihar Subordinate Engineering Service Irrigation Department were promoted to the posts of Assistant Engineers in the Service in 1962 and thereafter
However by orders dated 1271975 2011976 and 941977 the Government changed the date of promotion of the appellants to the dates prior to the appointment of respondents No 1 to 5 in the Service making the former Senior to the letter
Respondents No 1 to 5 filed writ petition before the High Court challenging the seniority conferred on the appellants from the retrospective date and contended that the orders giving promotions to the appellants from a date earlier to date of their promotion in the Service purported to affect prejudicially respondents No 1 to 5 s right inasmuch as they were appointed to the Service earlier to the promotion of the appellants and that the seniority had to be reckoned amongst the officials working as Assistant Engineers in the Service from the date of their appointment or promotion to the said Service
The appellants contended that they were entitled to be promoted retrospectively on the 411 basis of reservation of 25 of the Cadre posts in the Service till 1958
The High Court
holding that the orders promoting the appellants with retrospective effect were bad quashed the same and allowed the writ petition
Hence the present appeals
On consideration of the legality and validity of the orders of the Government giving promotions to the appellants from a date earlier to the date of their entry into the Service as Assistant Engineers and its effect on the inter se seniority amongst the appellants and respondents No 1 to 5 who were directly appointed as Assistant Enginers in the Service before the appellants entered in the said Service
Dismissing the appeals this Court HELD 1
The Government Orders dated 1271975 2011976 and 941977 which purported to give promotion to the appellants retrospectively were arbitrary illegal and inoperative inasmuch as these seriously affected rspondents No 1 to 5
The appellants were not borne in the cadre of Assistant Engineers even in officiating capacity at time when rspondents No 1 to 5 were directly recruited to the post of Assistant Egineer
As such the promotee appellants could not be under any circumstance given seniority over the directly recruited respondents No 1 to 5
The judgment of the High Court in quashing the impugned Government Orders was therefore unexceptionable
418F H 420A 21 No person can be promoted with retrospective effect from a date when he was not borne in the Cadre so as to adversely affect others and amongst members of the same grade seniority is reckoned from the date of their initial entry into the service
419F 22 Seniority inter se amongst the Assistant Engineers in Bihar Engineering Service Class II would be considered from the date of the length of service rendered as Assistant Engineers
Therefore the appellants could not be made senior to respondents No 1 to 5 by the impugned Government Orders as they entered into the said Service in 1962 and thereafter by promotion subsequent to respondent No 1 to 5 who were directly recruited in the quota meant for them
There was nothing to show that the appellants could be deemed to be recruited in 1958 quota and that these vacancies were carried forward
419G 418E F AK Subraman and Ors
vs Union of India and Ors  relied on
412 VB Badami vs State of Mysore and Ors 1976 1 SCR 815 and Gonal Bihimappa vs State of Karnataka 1987 Supp
SCC 207 held inapplicable
DK Mitra and Ors
vs Union of India and Ors 1985 Supp
SCC 243 referred to