DINESH KUMAR KASHYAP & ORS. ETC. versus SOUTH EAST CENTRAL RAILWAY & ORS. ETC.

Citation: [2018] 14 S.C.R. 947 · Decided: 27-11-2018 · Supreme Court of India · Bench: KURIAN JOSEPH · Disposal: Leave Granted & Disposed off

Cited by 3 judgment(s) · cites 8 · see the full citation network in Lexace

Judgment (excerpt)

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947
DINESH KUMAR KASHYAP & ORS. ETC.
v.
SOUTH EAST CENTRAL RAILWAY & ORS. ETC.
(Civil Appeal Nos. 11360-11363 of 2018)
NOVEMBER 27, 2018
[KURIAN JOSEPH, DEEPAK GUPTA AND
HEMANT GUPTA, JJ.]
Service Law – Appointment – Respondent No.1-Railways
issued advertisement inviting applications for filling up Group-D
posts for General Category in its Raipur, Bilaspur and Nagpur
divisions and workshops – According to the appellants, as per the
existing instructions dated 02.07.2008 the select list was to be
prepared with 20% extra candidates in the replacement list –
Appellants fall in the category of extra 20% – Claim of the appellants
before CAT that the Respondent No.1 be directed to fill in the unfilled
vacancies in the General Category from this list of 20% candidates
– Rejected – Writ petition filed by the appellants, also rejected –
Held: Per Deepak Gupta, J. (for himself and Kurian Joseph, J.) It
is true, that mere selection does not give any vested right to the
selected candidate to be appointed – However, at the same time
when a large number of posts are lying vacant and selection process
has been followed, then the employer must satisfy the court as to
why it did not resort to and appoint the selected candidates, even if
they are from the replacement panel – When the employer is the
State it is bound to act according to Art.14 –  There is no indication
in the pleadings that the vacancies were not to be filled up –
Respondent No.1 failed to give any cogent reason to justify its action
of not calling for candidates from the replacement list of extra 20%
candidates – Respondent No.1 to offer appointment to the eligible
appellants – Directions issued – [Per Hemant Gupta, J. (Dissenting)]
State has a right not to appoint candidates even if they are in merit
list – Appellants do not possess indefeasible right of appointment –
It is not the case, that any candidate lower in merit has been
appointed or the appointments have been made by pick and choose
method ignoring merit – Stand of Railways that the requirement to
fill up 624 vacant posts was not felt cannot be said to be arbitrary
– No reason to interfere in the decision-making process of the
Railways – Constitution of India – Art.14.
[2018] 14 S.C.R. 947
947
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948                    SUPREME COURT REPORTS            [2018] 14 S.C.R.
Disposing of the appeals, the Court
HELD: Per Deepak Gupta, J. (for himself and
Kurian Joseph, J.)
1.1  It is true, that mere selection does not give any vested
right to the selected candidate to be appointed.  At the same
time when a large number of posts are lying vacant and selection
process has been followed then the employer must satisfy the
court as to why it did not resort to and appoint the selected
candidates, even if they are from the replacement panel. The
State must give some justifiable, non-arbitrary reason for not filling
up the post.  When the employer is the State it is bound to act
according to Article 14 of the Constitution. It cannot without any
rhyme or reason decide not to fill up the post. It must give some
plausible reason for not filling up the posts. The courts would
normally not question the justification but the justification
must be reasonable and should not be an arbitrary, capricious
or whimsical exercise of discretion vested in the State.
[Paras 6, 7][953-B-C; 954-C-D]
1.2 There is no indication in the pleadings that the vacancies
were not to be filled up. The fact that three simultaneous selection
processes were undertaken, itself proves that the Respondent
No. 1 wanted to fill up all the posts and did not want any vacancies
to be left unfilled. This negates the plea of the Respondent No. 1
that it was not necessary to fill up the vacant posts. The appellants
herein who approached the CAT and the High Court with
promptitude cannot suffer only because the matter was pending
in Court. The judgment of the High Court and CAT,
Jabalpur Bench are set aside. Directions issued. The
Respondent No. 1 to offer appointment to the eligible appellants.
[Paras 8, 10, 11, 14 and 15][954-F-G; 955-A-C; 955-F-G;
956-B-C]
R.S. Mittal v. Union of India (UOI) 1995 (2) Suppl. SCC
230 : [1995] 2 SCR 1127 – relied on.
Per Hemant Gupta, J. (Dissenting)
1.1  In the present case, the appellants were called in for
the verification of documents as extra candidates to replace the
candidates selected who do not join for one or the other reason.
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Such candidates were called to meet out the neces

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