STATE OF ORISSA & ANR. v. RAJKISHORE NANDA & ORS.

A B ## [2010] 7 S.C.R. 301 ## STATE OF ORISSA & ANR. ## _v._ RAJKISHORE NANDA & ORS. (Civil Appeal No. 2808 of 2008) ## JUNE 3, 2010 [DR B.S. CHAUHAN AND SWATANTER KUMAR, JJ.] _Service Law:_ - - _Recruitment Select List prepared Appointment made_ - _on the notified vacancies Candidates, who were not_ C _appointed, but whose names were in the Select List,_ - _approaching Tribunal seeking direction for appointment Tribunal directing the State to give appointment to all the candidates in the Select List_ - _High Court, in appeal directing to give appointment only to the candidates who approached_ D - _the tribunal On appeal, held: Filling up vacancies, over the notified vacancies_ is _not permissible_ as _it amounts to filling up future vacancies -Such rule can be deviatetJ only in exceptional circumstances and in emergent_ situ~tion _only after adopting policy decision based on_ some _rational_ - _A_ E _person who.se name appears in the Select List_ 'does _not_ -- _acquire any indefecisible right of appointment Select List not to be treated_ as a _reservoir for the purpose of appointments_ - _Vacancies to be filled up_ as _per statutory rules and in conformity with constitutional mandate_ - _Once the selection_ F process _in respect of certain number of vacancies_ is _over, it_ is _not open to offer appointment to persons from the_ - _unexhausted Select List Courts/Tribunals are not competent to_ issue _direction to initiate selection process to fill up_ - _vacancies_ Orissa _Ministerial Service (Method of_ G _Recruitment to_ Posts _of Junior Clerks in the District Offices) Rules, 1985_ - _rr. 6, 11 (1) and 12._ F To fill up 33 vacancies of Junior Clerks a Select List of 66 candidates was published. Appointments were 301 H SUPREME COURT REPORTS [2010] 7 S.C.R. 302 - A made. Respondents, whose names appeared in the Select List and were not offered appointment, filed applications before Central Administrative Tribunal seeking direction to offer them appointment. The Tribunal concluded that appointments were to be offered to all the - B candidates till the entire Select List stood exhausted. Tribunal directed to offer appointment to all the left-over candidates in the Select List. In the writ petition, High <;;ourt modified the order of the Tribunal, directing the appellants to offer appointment C to those who had approached the tribunal. Hence the appeal. ## Allowing the appeal, the Court HELD: 1. Filling up the vacancies over the notified D vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated an·d. such a deviation is permissible only after adopting policy E decision based on some rational", othe..Wise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. [Para 10) [310-G-H; 311-A-B] _State of Bihar and Ors. vs. The Secretariat Assistant_ S.E. F _Union 1986 and Ors._ AIR 1994 SC 736; _Prem Singh and Ors. vs. f-/aryana State Electricity Board and Ors._ (1996) 4 SCC 319; _Ashok Kumar and Ors. vs. Chairman, Banking Service Recruitment Board and Ors._ AIR 1996 SC 976; _Surinder Singh and Ors. vs. State of Punjab and Ors._ AIR 1998 SC 18; G _Rakhi Ray and Ors. vs. High Court of Delhi_ AIR 2010 SC 932; _State of Punjab v. Raghbir Chand Sharma and Ors._ AIR 2001 SC 2900; _Mukul Saikia and Ors. v. State of Assam and Ors._ AIR 2009 SC 747, relied on. - H 2. A person whose name appe~rs in the Select List STATE OF ORISSA & ANR. _v._ RAJKISHORE NANDA 303 & ORS. ETC. does not acquire any indefeasible right of appointment. A Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional B mandate. Select List cannot be treated as a reservoir for the purpose of appointments. [Paras 13 and 15] [312-8C; G-H] _Shankarsan Dash vs. Union of India_ AIR 1991 SC 1612; _Asha Kaul and Anr vs. State of J_ & _Kand Ors._ (1993) 2 sec C 573; _Union of India vs._ S.S _Uppal_ AIR 1996 SC 2340; _Bihar Public Service Commission vs. State of Bihar_ AIR 1997 SC 2280; _Simancha/ Panda vs. State of Orissa and Ors._ (2002) 2 SCC 669; _Punjab State Electricity Board and Ors._ vs. · _Malkiat Singh_ (2005) 9 SCC 22; _Union of India and . .Ors.' vs._ D _Kali Dass Batish and Anr._ AIR 2006 SC 7~9; _'Divisional Forest Officers and Ors. vs. M. Ramalinga_ I _Reddy_ AIR 2007 SC 2226; _Subha B. Nair and Ors. vs. ,State of Kera/a and Ors._ (2008) 7 SCC 210; _Mukul Saikia an1cJ Ors. vs. State of Assam and Ors._ AIR 2009. SC 747; S.S. _Balu and Anr. vs. State of_ E _Kera/a and Ors._ (2009) 2 sec 479, relied on. 3. No relief can be granted to the candidate if he approaches the court after expiry of the Select List. If the selection process is over, Select List has expired and appointments had been made, no relief can be granted by the court at a belated stage. [Para 15] [312-H; 313-AB] F _J. Ashok Kumar vs. State of Andhra Pradesh and Ors._ (1996) 3 SCC 225; _State of Bihar and Ors. vs. Md. Kalimuddin and Ors._ AIR 1996 SC 1145; _State of U. P. and Ors. vs. Harish Chandra and Ors._ AIR 1996 SC 2173; _Sushma Suri vs. Government of National Capital Territory of Delhi and Anr._ (1999) 1 SCC 330; _State of UP. and Ors. vs. Ram Swarup Saro)_ (2000) 3 SCC 699; _K. Thulaseedharan vs. Kera/a State_ G H 304 SUPREME COURT REPORTS [2010] 7 S.C.R. - A _Public Service Commission, Trivendrum and Ors._ (2007) 6 SCC 190; _Deepa Keyes vs. Kera/a State Electricity Board and Anr._ (2007) 6 SCC 194; _Subha B. Nair and Ors. vs. State of Kera/a and Ors._ (2008) 7 sec 21 o, relied on. 4. Orissa Ministerial Service (Method of Recruitment 8 to Posts of Junior Clerks in the District Offices) Rules, 1985 provide for determining the number of vacancies and holding competitive examination ordinarily once in a year. Select list prepared so is also valid for one year. In the instant case, 15 vacancies were advertised with a C clear stipulation that number of vacancies may increase. The authorities had taken a decision to fill up 33 vacancies, thus, select list of 66 persons was prepared. It is also evident from the record that some more appointments had been made over and above the 33· D determined vacancies~ Thus, once the selection process in respect of number of vacancies so determined came to an end, it is no more open to offer appointment to persons from the unexhausted list. It is exclusive prerogative of the employer/State Administration to initiate E the selection process for filling up vacancies occurred during a particular year. There may be vacancies available but for financial constraints, the State may not be in a position to initiate the selection process for making appointments. _Bonafide_ decision taken by the appointing F authority to leave certain vacancies unfilled, even after preparing the Select List cannot be assailed. The Courts/ Tribunals have no compet~nce to issue direction to the State to initiate selection process to fill up the vacancies. [Para 16) [313-D-H; 314-A] G 5. As the appointments had been made as per the select list prepared in 1995 and selection process came to an end, there was no occasion for the Tribunal to entertain the applications in 1997, 1998 and 1999 for the simple reason that once the number of vacancies H determined are filled, the selection process came to an ' STATE OF ORISSA & ANR. _v._ RAJKISHORE NANDA 305 & ORS. ETC. end, no further appointment could be made from 1995 A panel. The purpose of making the list of double of the vacancies determined is to offer the appointment to the persons from the waiting list in case persons who are offered appointment do not join. But it does not give any vested right in favour of the candidates whose names B appeared therein. [Para 17] [314-B-D] 6. Rule 11 (1) of the Rule~, 1985 did not provide originally to prepare the list double the number of determined vacancies and it was only for preparing the list containing the names equal to the number of C vacancies advertised/determined. In such a fact-situation, the select list could have been prepared only containing 33 names i.e. equivalent to the number of vacancies determined and the selection process would come to an end automatically whenever 33 candidates are appointed. · D However, if the appellant had prepared a list double the number of vacancies determined, that would not create any vested right in favour of the respondents. Thus, Tribunal committed grave error issuing direction to offer appointments to all the left-over candidates. [Para 18) E (314-E-.G] 7. The view taken by the High Court that a cumulative reading of Rules 6 and 11(1) of the Rules, 1985 vis-a-vis the Select List which contained the names of 66 successful candidates leads to conclusion that the number of vacancies at the time of publication of the Select list was 66 cannot be held to be in consonance with law. More so, if the State has committed an error in preparing the merit list containing the names of candidates double the number of vacancies determined, that would not mean that Select List has become immortal and all those persons whose names appeared in the list would be offered appointment even after expiry of the life of Select List. (Paras 21 and 22] [315-E-H; 316A-C] . F G H [2010] 7 S.C.R. 306 SUPREME COURT REPORTS |A|Case Law Reference:|Case Law Reference:|Case Law Reference:| |---|---|---|---| ||AIR 1994SC736|Relied on|Para 10| ||(1996)4.sec319|Relied on|Para 10| |B|AIR 1996SC976|Relied on|Para 10| ||AIR 1998SC18|Relied on|Para 10| ||AIR2010SC932|Relied on|Para 10| ||AIR2001SC2900|Relied on|Para11| |c|AIR2009SC747|Relied on|Paras12and 14| ||AIR1991SC1612|Relied on|Para 14| ||(1993) 2sec573|Relied on|Para 14| |D|AIR 1996SC2340|Relied on|Para 14| ||AIR 1997SC2280|Relied on|Para 14| ||(2002) 2sec669|Relied on|Para 14| |E|(2005)9sec22|Relied on|Para 14| ||AIR2006SC789|Relied on|Para 14| ||AIR2007SC2226|Relied on|Para 14| |F|(2008)_1_sec210|Relied on|Paras 14 and 15| ||(2009) 2sec479|Relied on|Para~4| ||(1996) 3sec225|Relied on|Para 15| ||AIR 1996SC1145|Relied on|Para 15| |G|AIR 1996SC2173|Relied on|Para 15| ||(1999) 1sec330|Relied on|Para 15| ||(2000) 3sec699|Relied on|Para 15| |H|||| STATE OF ORISSA & ANR. _v._ RAJKISHORE NANDA 307 & ORS. ETC. **(2007) 6 SCC 190 Relied on** ~ara **'15** A **(2007) 6 SCC 194 Relied on Para 15** CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2008 of 2808. 8 From the Judgment & Order dated 26.10.2005 of the High Court of Orissa at Cuttack in OJC Nos. 10582, 11262, 11265, 11268, 11269, 11271, 11273, 11274, 11275, 11279, 11280, 11282, 11324 & 11326 of 2000. Janaranjan Das, Swetaketu Mishra, P.P. Nayak for the Appellants. C H.P. Sahu, Abhisth Kumar, J.P. Mishra, Shankar Divate for the Respondents. The Judgment of the Court was delivered by **DR. B.S. CHAUHAN** 1. The present appeal has been preferred against the Judgment and Order of the Orissa High Court dated 26.10.2005 passed in OJC Nos. 10582, 11262, 11268, 11269, 11271, 11273, 11275, 11279, 11280, 11324 & 11326 of 2000, by which the High Court dismissed the Writ Petition filed by the State of Orissa/Appellant against the Judgment and order of the Orissa Administrative Tribunal, Cuttack (hereinafter called as, "the Tribunal") dated 7.4.2000 issuing direction to the appellant to appoint all the persons whose names appeared in the panel for the selection on the post of Junior Clerk held .in 1995. 2. Facts and circumstances giving rise to the present appeal are that in order to fill up 15 posts of Junior Clerks in District Sonepur, applications were invited by an advertisement dated 25.06.1995. The advertisement made it clear that number of vacancies could be increased. The respondents applied in pursuance of the said advertisement along with large number of persons and written examination was held in D E F G H 308 SUPREME COURT REPORTS [2010] 7 S.C.R. A accordance with the Orissa Ministerial Service (Method of Recruitment to Posts of Junior Clerks in the District Offices) Rules, 1985 (hereinafter called as, "Rules, 1985"). Before the selection process could complete, the number of vacancies were increased from 15 to 33 and as per the requirement of B Rules, 1985, a merit list of 66 candidates was published on 6.11.1995. The appointments were made on the said posts. The respondents, whose names appeared in the merit list and could not be offered appointment, being much below in the merit list, filed applications before the Tribunal praying for a c direction to the State to offer them appointments. The Tribunal, vide its Judgment and Order dated 7.4.2000, came to the conclusion that appointments were to be offered to all the candidates till the entire select list stood exhausted. Therefore, the Tribunal directed to offer appointment to all left over 0[candidates ][in ][the select list ][of ][1995. ] 3. Being aggrieved, the State preferred the writ petition against the said common Judgment and order of the Tribunal in the High Court of Orissa and the High Court,\vide Judgment and order dated 26.10.2005, modified the order of the Tribunal E issuing direction to the appellants to offer appointment to those persons who had approached the Tribunal. Hence, this appeal. 4. Sh. Janaranjan Das, learned counsel appearing for the appellant-State, has submitted that number of vacancies cannot F be filed up over and above the number of vacancies advertised. Once the advertised vacancies are filled up, the selection process stands exhausted and the selection process comes to an end. Where the Rules provide to determine the vacancy yearly, life of select list cannot be more than one year and once G the life of the select list expires, no appointment can be offered from the panel so prepared. The Tribunal and the High Court committed an error issuing directions to appoint the candidates from the unexhausted part of the select list, which is not permissible in law. Thus, the appeal deserves to be allowed. H STATE OF ORISSA & ANR. _v._ RAJKISHORE NANDA 309 & ORS. ETC. [DR. B.S. CHAUHAN, J.] 5. Per contra, Sh. H.P. Sahu and Sh. J.P. Mishra, learned A counsel appearing for the respondents vehemently opposed the appeal contending that if the selection is not held in subsequent years, candidates whose names appear in the panel have to be offered appointments. Therefore, no interference is required with the impugned Judgment and order B of the High Court. The appeal lacks merit and thus, liable to be dismissed. 6. We have considered the rival submissions of the learned counsel for the parties and perused the recorq. c 7. Relevant Rules from Rules, 1985, which are necessary to be considered for deciding the appeal, read as under :- "Rule 2 _Definitions_ - In these rules unless the context otherwise requires - ................... "Year" means a calendar year. Rule 3 _Recruitment_ Recruitment to the posts shall be made through direct recruitment by means of a competitive examination to be held ordinarily once in every year. E Rule 6 _Notification of vacancies_ On the receipt of the requisite information from the District F Officers the Chairman of the Board shall notify the total number of vacancies to the lo.cal employment exchange . indicating therein the number of reseNed vacancies for the purpose of conducting the competitive examination. Rule 11 (1) _Allotment of successful candidates_ G The Chairman of the Board shall ensure completion of evaluation of answer papers and preparation of the list of successful candidates who have qualified by such standards as will be decided by him ordinarily within two H 310 SUPREME COURT REPORTS [2010] 7 S.C.R. - A months from the date of examination. The candidates' names shall be arranged in order of merit on the basis of marks secured by them in _I_ the examination conducted by the Board. This list of successful candidates drawn in order of merit shall not ordinarily exceed double the number of - B vacancies as determined under Rule 6. - _Rule 12_ The list prepared under Sub-rule (1) of Rule 11 shall remain valid for a period of one year from the date of publication of the same or till drawal of the next year's list, whichever is earlier. - c 8. If the aforesaid relevant Rules are read together, the cumulative effect thereof comes to that after determining the number of vacancies taking into consideration the expected vacancies, the same shall stand notified to local Employment D Exchange and advertise the same through other means. The select list, after holding the test as required under the Rules, 1985, shall be prepared and published, which shall contain the names of candidates, double the number of vacancies so advertised/determined. E 9. Rule 14 merely enables the State Government to relax the eligibility conditions by recording reasons in respect of any class or categories of persons in public interest. 10. It is a settled legal proposition that vacancies cannot F be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution",,of those persons who acquired eligibility for the post in question - G in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent - H situation, such a rule can be deviated and such a deviation is STATE OF ORISSA & ANR. _v._ RAJKISHORE NANDA 311 & 'ORS. ETC. [DR. B.S. CHAUHAN, J.] permissible only after adopting policy decision based on some rational", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. (Vide _State of Bihar_ & _Ors. Vs. The Secretariat Assistant S.E. Union 1986_ & _Ors._ AIR 1994 SC 736; _Prem Singh_ & _Ors. Vs. Haryana State Electricity Board_ & _Ors._ ( 1996) 4 SCC 319; _Ashok Kumar_ & _Ors. Vs. Chairman, Banking Service Recruitment Board_ & _Ors._ AIR 1996 SC 976; _Surinder Singh_ & _Ors. Vs. State of Punjab_ & _Ors._ AIR 1998 SC 18; and _Rakhi Ray_ & _Ors. Vs. High Court of Delhi_ AIR 2010 SC 932). A B C / 11. In _State of Punjab v. Raghbir Chand Sharma and Ors._ AIR 2001 SC 2900, this Court examined the case where only one post was advertised and the candidate whose name appeared at Serial No. 1 in the select list joined the post, but subsequently resigned. The Court rejected the contention that post can be filled up offering the appointment to the next candidate in the select list observing as under: D _"With the appointment of the first candidate for the only post in respect of which the consideration came to be_ E _made and select list prepared, the panel ceased to exist and has outlived its utility and at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the_ F _person appointed from the panel or any other vacancies arising subsequently."_ 12. In _Muku/ Saikia and_ Ors. _v. State of_ Assam _and_ Ors. AIR 2009 SC 747, this Court dealt with a similar issue and held that "if the requisition and advertisement was only for 27 posts, G the State cannot appoint more than the number of posts advertised". The Select List "got exhausted when all the 27 posts were filled". Thereafter, the candidates below the 27 appointed candidates have no right to claim appointr:nent to any vacancy in regard to which selection was not held. The H G 312 SUPREME COURT REPORTS (2010] 7 S.C.R. A _"currency of Select List had expired as soon as the number of posts advertised are filled up, therefore, the appointments beyond the number of posts advertised would amount to filling up future vacancies"_ and said course is impermissible in law. 13. A person whose name appears in the select list does 8 not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the C constitutional mandate. > 14. A Constitution Bench of this Court in _Shankarsan Dash Vs. Union of India,_ AIR 1991 SC 1612, held that _appearance of the name of a candidate in the select list does_ D _not give him a right of appointment._ Mere inclusion of candidate's name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. (see also _Asha Kaul_ & _Anr. Vs. State_ E _of J_ & _K_ & _Ors.,_ (1993) 2 SCC 573; _Union of India Vs._ S.S. _Up pal,_ AIR 1996 SC 2340; _Bihar Public Service Commission Vs. State of Bihar_ AIR 1997 SC 2280; _Simanchal Panda Vs. State of Orissa_ & _Ors.,_ (2002) 2 SCC 669; _Punjab State Electricity Board_ & _Ors. Vs. Ma/kiat Singh_ (2005) 9 SCC F 22; _Union of India_ & _Ors. Vs. Kali Dass Batish_ & _Anr._ AIR 2006 SC 789; _Divisional Forests Officers_ & _Ors. Vs. M. Ramalinga Reddy_ AIR 2007 SC 2226; _Subha B. Nair_ & _Ors. Vs. State of Kera/a_ & _Ors.,_ (2008) 7 SCC 210; _Mukul Saikia_ & _Ors. Vs. State of Assam_ & Ors., (2009) 1 SCC 386; and S.S. _Batu_ & G _Anr_ Vs. _State of Kera/a_ & _Ors.,_ (2009) 2 SCC 479). 15. Select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. H It is the settled legal proposition that no relief can be STATE OF ORISSA & ANR. _v._ RAJKISHORE NANDA 313 & ORS. ETC. [DR. B.S. CHAUHAN, J.] granted to the candidate if he approaches the .Couri after expiry A of the Select List. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the Court at a belated stage. (Vide _J.Ashok Kumar Vs. State of Andhra Pradesh_ & _Ors.,_ (1996) 3 SCC 225; _State_ · _9( Bihar_ & _Ors. Vs. Md. Kalimuddin_ & _Ors.,_ AIR 1996 SC B 11'45;, _State of UP._ & _Ors. Vs. Harish Chandra_ & _Ors.,_ AIR . 1996 SC 2173; _Sushma Suri Vs. Government of National Capital Territory of Delhi_ & _Anr.,_ (1999) 1 SCC 330; _State of U.P._ & _Ors. Vs. Ram Swarup Saroj,_ (2000) 3 SCC 699; _K. Thulaseedh;f1ran Vs. Kera/a State Public Service_ C _Commission, Trivendrum_ & _Ors.,_ (2007) 6 SCC 190; _Deepa Keyes -Vs.- Kera/a State Electricity Board_ & _Anr.,_ (2007) 6 SCC 194; and _Subha 8. Nair_ & _Ors._ (supra). 16. The instant case is required to be examined in view of the aforesaid settled legal proposition. The Rules, 1985 provide for determining the number of vacancies and holding competitive examination ordinarily once in a year. Select list prepared so also valid for one year. In the instant case, 15 vacancies were advertised with a clear stipulation that number of vacancies may increase. The authorities had taken a decision to fill up 33 vacancies, thus, select list of 66 persons was prepared. It is also evident from the record that some more appointments had been made over and above the 33 determined vacancies. Thus, once the selection process in respect of number of vacancies so determined came to an end, it is no more open to offer appointment to persons from the unexhausted list. It is exclusive prerogative of the employer/ State Administration to initiate the selection process for filling up vacancies occurred during a particular year. There may be vacancies available but for financial constraints, the State may not be in a position to initiate the selection process for making appointments. Bonafide decision taken by the appointing authority to leave certain vacancies unfilled, even after preparing the select list cannot be assailed. The Courts/ Tribunals have no competence to issue direction to. the State D E F G H 314 SUPREME COURT REPORTS [2010] 7 S.C.R. - A to initiate selection process to fill up the vacancies. A candidate only has a right to be considered for appointment, when the vacancies are advertised and selection process commences, if he possess the requisite eligibility. 17. As the appointments had been made as per the select 8 list prepared in 1995 and selection process came to an end, there was no occasion for the1 Tribunal to entertain the _r_ Applications in 1997, 1998'and 1999 for the simple reason that once the oµmber' -~f vacancies determined are filled, the selectioh process came to an end, no further appointment could . C, "6~ made from 1995 panel. The purpose of making the list of double of the vacancies determined is to offer the appointment to the persons from the waiting list in case persons who are offered appointment do not join. But it does not give any vested right in favour of the candidates whose names appeared D therein. 18. It appears from the Judgment of the Tribunal that Rule 11 (1) of the Rules, 1985 did not provide originally to prepare the list double the number of determined vacancies and it was E only for preparing the list containing the names equal to the number of vacancies advertised/determined. In such a factsituation, the select list could have been prepared only containing 33 names i.e. equivalent to the number of vacancies determined. In such a fact-situation, selection process would F come to an end automatically whenever 33 candidates are appointed. However, if the appellant had prepared a list double the number of vacancies determined, that would not create any vested right in favour of the respondents. Thus, Tribunal committed grave error issuing direction to offer appointments to all the left over candidates. G 19. The Tribunal held as under:- H "In this case by preparing the panel far exceeding the number of vacancies, the Rules have been violated. For this lapse on the part fo the Collector, the candidates who STATE OF ORISSA & ANR. _v._ RAJKISHORE NANDA 315 & ORS. ETC. [DR. B.S. CHAUHAN, J.] have been subjected to a rigorous selection at more than A one stage, should not be penalised ............. _The validity of the select J/st has expired long since._ Both learned counsel for the applicant and the learned Government Advocate concede that no further recruitment has been conducted by the Collector, Sonepur. During this B intervening period of four years vacancies must be arisen due to promotion, retirement, creation of new posts etc. in different offices." (Emphasis added) 20. The Tribunal, after recording the finding of fact that life of select list had expired, held that as the selection could not be held in subsequent years, thus, candidates whose narnes[1 ] appeared in the panel should be offered appo.intnient by granting relaxation of Rules. Issuance of such a'<:iirection is not permissible in law as no appointment can be made from the panel after expiry of the life of select lis{ C D ## 21. The High Court has concluded as under :- "Here the advertisement stipulated that there were vacancies and the vacancy position might go up. The E select list prepared admittedly contained the names of 66 successful candidates. A cumulative reading of Rules 6 & 11 ( 1) of the OMS Rules, 1985 vis-a-vis the select list which contained the names of 66 successful candidates leads to an irresistible conclusion that the number of vacancies F at the time of publication of the select list was 66. the stand of the State before this Court is that under the impression that the select list should contain double the number of vacancies, a lsit of 66 candidates was published. But then, if the said statement is accepted, the vacancies that existed at the time of publication of the select list would G have been 33. But it appears that the total number of candidates already appointed is 40 ......... The submission of the State that as one year had expired from the date of publication of the select list, the same had spent its validity F H 316 SUPREME COURT REPORTS [2010] 7 S.C.R. A cannot also be accepted. If vacancies were available, the candidates selected but illegally not sponsored for appointment should not suffer." In view of the above, the High Court directed to offer the 8[appointment to the persons whose names appeared ][in ][the ] panel and had approached the Tribunal. 22. The aforesaid view taken by the High Court cannot be held to be in consonance with law. More so, if the State has committed an error in preparing the merit list containing the C names of candidates double the number of vacancies determined, that would not mean that select list has become immortal and all those persons whose names appeared in the list would be offered appointment even after expiry of the life of select list. D 23. In view of the above, the Judgment and order impugned hereinabove cannot be sustained in the eyes of law. The appeal is allowed. The Judgments and orders of the Tribunal dated 7.4.2000 and the High Court dated 26.10.2005 are set aside. E No order as to costs. K.K.T. Appeal allowed.