LexS.S. BALU & ANR. versus STATE OF KERALA & ORS.
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[2009] 1 S.C.R. 196 A S.S. BALU & ANR. v. STATE OF KERALA & ORS. (Civil Appeal No.104 of 2009) B JANUARY 13, 2009 [S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] Service law - Appointment - Post of assistant - Names of appellants appearing in rank list but not appointed - c Vacancies reported just before expiry of rank list as anticipated vacancies and as such non-issuance of letter of advise - Subsequently, Government Order that there was no vacancy - Challenged by petitioners - Appointment of petitioners - Claim of appointment by appellant - Held: Person does not D acquire a legal right to be appointed only because his name appears in select list - It is only when there is discrimination or arbitrariness in filling up the vacancies - State as employer has right to fill up all posts or not to fill them up - First rank list as a/so second rank list exhausted and vacancies in terms E thereof filled up - Appellant did not challenge Government Order- They imp/eaded themselves as parties only after writ petitions filed by others were allowed and State filed appeal thereagainst - Delay defeats equity - Thus, State or Commission cannot be directed to appoint appellants at this F stage - De/ay!Laches. Appellants applied for the post of Assistants. State Public Service Commission prepared a rank list, which was in force for three years. Name of the appellants appeared therein. However, the vacancies were not filled G up. Writ petitions were filed. Pursuant to the directions by the High Court, Deputy Director of Education reported 125 vacancies and further 50 vacancies just before the y expiry of the rank list with a note that they were anticipated vacancies. As a result, the Commission could H 196 S.S. BALU & ANR. v. STATE OF KERALA & ORS. 197 not issue letter of advise against the said vacancies. Writ A petitions were disposed of with a direction to the respondent-State to take decision. Respondent issued Government Order reporting that there was no vacancy. Few candidates filed writ petition for quashing of the Government Order and for a declaration that 175 B vacancies should be filled from amongst the candidates whose names were there in the select list. High Court held that the 175 vacancies already reported were not anticipated vacancies but vacancies which had, in fact, occurred prior to the expiry of rank list and the candidates c included therein are entitled to be advised for appointment against those vacancies; and that claim of the petitioners could not be denied for the reason that during the pendency of the writ petitions a new list came into operation. Respondent filed appeal. Appellants got D themselves impleaded as parties. Writ Appeal was -<\ allowed directing the Commission to advise in respect of 18 petitioners who had filed the writ petition. However, no direction was issued in respect of appellants. Hence the present appeal. E Dismissing the appeal, the Court HELD: 1.1 The matter might have been different, had the Single Judge as also the Division Bench of High ·"' Court come to a conclusion that in fact there existed 125 F vacancies wherefor requisition was sent to the Commissioner. The existence of actual number of vacancies being in dispute, it is difficult to opine that all such vacancies existed. Before the Division Bench of the High Court, the State conceded that 18 original writ petitioners may be appointed stating that they were the G actual beneficiaries of the judgment. Such a stand on the >( part of the State was accepted. The Division Bench of the High Court did not go into the other contentions raised by the parties thereto. Therefore, no factual foundation H 198 SUPREME COURT REPORTS (2009] 1 S.C.R. A has been laid for arriving at the conclusion that all the 125 vacancies existed. [Para 14] [203-H; 204-A-C] 1.2. A person does not acquire a legal right to be appointed only because his name appears in the select 8 list. The state as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to the filling up of the vacancies or an arbitrariness is committed, the concerned candidate will have no legal right for obtaining a writ of or in the nature C of mandamus. [Paras 15 and 16] [204-D, E, F] 1.3. The rank list was valid for a period of three years. Its validity expired on 5.6.2000. Another Select List was published for the period from 16.9.2002
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