Case Note & Summary
The Supreme Court dismissed a special leave petition filed by an Assistant in the Economics and Statistics Department of the Kerala Government who had sought appointment as Legal Assistant Grade II by transfer under the Kerala Secretariat Subordinate Service Special Rule. The petitioner had applied for the post, appeared in a written test conducted on August 8, 1989, and was placed at serial number 13 in the merit list prepared on October 23, 1989 for filling one vacancy by transfer from other departments. Despite existing vacancies, he was not appointed, prompting him to file a writ petition before the Kerala High Court. Pursuant to an interim direction, he was appointed on October 15, 1992. Subsequently, by notification dated December 15, 1992, applications were invited for the same post from other departmental candidates, and the earlier waiting list was cancelled. The petitioner contended that the 1989 list was still in operation, that he had been appointed to an existing vacancy under court direction, and therefore he should be regularised irrespective of the later notification. The High Court, by judgment dated November 22, 1996 in O.P. No. 13328/92, held that his appointment, though under court direction, could not be regularised. The Supreme Court examined the settled legal position that inclusion in a select list does not confer an indefeasible right to appointment unless the relevant rules so provide, relying on Shankarasan Dash v. Union of India, Union Territory of Chandigarh v. Dilbagh Singh, and State of Bihar v. Secretariat Assistant Successful Examinees Union. It further held that a waiting list cannot be kept in perpetuity, as a long panel would bar future generations from consideration, and the principle 'infinitum in jure reprobatur' applies. The court also reiterated that appointment under an interim order is subject to the final outcome and does not create any right to regularisation. Emphasising strict compliance with recruitment rules under Article 309 of the Constitution, the court ruled that bypassing the Public Service Commission would open a backdoor for illegal recruitment. Relying on Ashok Kumar v. Chairman Banking Service Recruitment Board, it affirmed that vacancies must be notified and selection must follow prescribed procedure. The Supreme Court found no error in the High Court's reasoning and dismissed the special leave petition, thereby upholding the denial of regularisation.
Headnote
A) Service Law - Select List and Right to Appointment - Inclusion in select list does not confer indefeasible right to appointment absent specific rule - Kerala Secretariat Subordinate Service Special Rule, Rule 7 - Petitioner was included at No.13 in merit list for Legal Assistant Grade II but not appointed despite vacancies; court relied on Shankarasan Dash v. Union of India and Union Territory of Chandigarh v. Dilbagh Singh to hold that mere inclusion in select list does not confer right; empanelment is at best a condition of eligibility. Held that non-appointment was not arbitrary absent a rule creating right (Paras Not mentioned). B) Service Law - Life of Select List/Waiting List - Panel cannot be kept indefinitely; reasonable time limit applies - Kerala Secretariat Subordinate Service Special Rule, Rule 7 - Notification dated 1992-12-15 cancelled waiting list; court held a long waiting list cannot be kept in infinitum in view of principle 'infinitum in jure reprobatur'; panel must have co-relation to existing vacancies; future generations cannot be barred. Held that panel life impliedly limited to reasonable time (Paras Not mentioned). C) Service Law - Appointment under Interim Order - Interim appointment does not confer right to regularization - Kerala Secretariat Subordinate Service Special Rule, Rule 7 - Petitioner appointed on 1992-10-15 pursuant to interim direction of High Court; final adjudication held no right; interim order subject to final outcome; appointment by interim order creates no right. Held that regularisation cannot be claimed on basis of interim appointment (Paras Not mentioned). D) Constitutional Law - Recruitment Rules under Article 309 - Strict compliance required; no backdoor recruitment - Constitution of India, Article 309, Articles 14, 16 - Recruitment rules made under Article 309 must be followed strictly and not in breach; bypassing rules and Public Service Commission would open backdoor for illegal recruitment; vacancies must be notified. Held that petitioner had no right to post as list was closed and recruitment made through Public Service Commission (Paras Not mentioned). E) Constitutional Law - Equality in Public Employment - Appointments without notification violate Articles 14 and 16 - Constitution of India, Articles 14, 16 - Relying on Ashok Kumar v. Chairman Banking Service Recruitment Board, court held that vacant posts arising or expected must be notified and no one can be appointed without due notification and selection according to rule; appointment from waiting list without notification would be illegal. Held that no interference warranted on equitable grounds (Paras Not mentioned).
Issue of Consideration
Whether inclusion in a select list confers an indefeasible right to appointment; whether a select list can continue indefinitely; whether appointment under an interim court order creates a right to regularisation; whether recruitment rules under Article 309 of the Constitution were strictly followed.
Final Decision
The Supreme Court found no error in the High Court's reasoning and dismissed the special leave petition, thereby upholding the denial of regularisation of the petitioner's appointment as Legal Assistant Grade II.
Law Points
- Inclusion in select list does not confer indefeasible right to appointment absent specific rule
- Panel life must be limited to reasonable time and cannot be kept indefinitely
- Appointment under interim order does not create right to regularization
- Recruitment rules under Article 309 must be strictly followed
- Vacancies must be notified and appointments made according to rules
- No backdoor recruitment bypassing Public Service Commission
