JUDGMENT <NAME>, J.

1. Unless the oral application for an adjournment of the hearing of a previous execution petition, made by the decree-holder on the 7th August 1908 is held to be an application to take a step in aid of execution, the present execution application of 3rd July 1911 is clearly barred by limitation.

2. The question is not free from difficulty. <CITATION> (1900) I.L.R., 27 Calc., 285, there is an obiter dictum showing that an application for adjournment to enable the decree-holder to conduct his petition further with effect is not an application to take a step in aid of execution.

3. A different view was taken in <NAME> v. <NAME> (1909) 14 C.W.N., 486, where the point directly arose.

4. The learned vakil for the judgment-debtors (appellants before us) sought to distinguish <NAME> v. <NAME> (1909) 14 C.W.N., 486 from the present case on two grounds:

(a) that the application for adjournment relied on in <NAME> v. <NAME> (1909) 14 C.W.N., 486 was in writing and not oral;

(b) that the application in that case was an application for an adjournment to enable the decree-holder to produce an affidavit as evidence to carry on those execution proceedings further, whereas it was not so in the present cast).

5. I think that neither of these contentions is sound. There is nothing in Article 179 of the Limitation Act which requires the application to take some step in aid of execution to be in writing. <NAME> v. <NAME> (1880) I.L.R., 3 All., 39 and <NAME> v. <NAME> (1891) I.L.R., 15 Bom., 405 at p. 407 are direct authorities to the contrary and I am prepared to follow them.

6. Then as regards the other distinction sought to be made, I am unable to see that the application for an adjournment to enable the decree-holder to produce affidavit-evidence in aid of further proceedings [which was the application in <NAME> v. <NAME> (1909) 11 C.W.N., 486], stands on a better footing than an application for an adjournment to enable the decree-holder to produce an encumbrance certificate in respect of the attached property in aid of further proceedings in execution.

7. Then reliance is placed by the appellant's vakil on the reason given in the obiter dictum in <CITATION> (1900) I.L.R., 27 Calc. 285. That reason is that an application for adjournment is in retardation of the execution proceedings and not in aid of the execution proceedings. I think that there is a fallacy in this reasoning. When an application for adjournment is made by the judgment-debtor, it is almost invariably to retard the execution proceedings. As regards an application by the decree-holder it may be one of three things:

(a) It may be to get an order in aid or

(b) it may be to get an order in retardation or

(c) it may be to get an order which is neither.

8. An application by the decree-holder to give time to the judgment-debtor merely as a matter of grace is a step in retardation. An application for an adjournment to enable the decree-holder to produce records or evidence necessary to effectively conduct the execution proceedings further will be an application to get an order in aid. <NAME> v. <NAME> (1912) 14 Bom. L.R., 1204; <CITATION> (1912) I.L.R., 36 Bom., 638; <CITATION> (1907) I.L.R., 29 All., 301 at p. 302 and <CITATION> (1882) I.L.R., 5 Mad., 141.

9. An application by the decree-holder to draw money deposited in <ORG> or to obtain copies of sale lists (without anything to indicate that they were necessary to aid further execution) will be application neither in aid nor in retardation.

10. In the present case, I think that the application for an adjournment was for an order in aid.

11. I think that the <ORG> is a little harsh on decree-holders in fixing the date of applying for execution as one of the starting points for limitation for calculating the 'three years' period for the next subsequent application in execution instead of the date on which the proceedings in the previous application for execution terminated, and I should be glad if the Limitation Act is amended so as to fix the latter date. But the harshness is mitigated to some extent by allowing the date of applying to take a step in aid to be also a starting point and I think that if even an oral application is really for an order which will be a step in aid (and not merely for an order which will be indifferent or retarding) a liberal interpretation should be put on the Article 179 so as to enable a decree-holder to obtain the fruits of his decree.

12. In the result I would dismiss the appeal with costs.

Spencer, J.

13. I concur.


<NAME>, J.

1. This is an application for an amendment of the plaint. The plaintiff instituted this suit on 26-5-1952 against the defendant. It is alleged in the plaint, as filed, that on or about 30-3-1949, it was agreed by and between the plaintiff and the defendant by means of letters exchanged between the parties that the plaintiff would sell and the defendant would purchase 100 tons of imported continental paper upon certain terms specified in the plaint. It is then stated that the plaintiff had supplied the defendant and the defendant had accepted 40 tons 756 lbs. of the contracted goods, as a result of which a sum of Rs. 80,663/8/3 became due and payable, out of which the plaintiff had been paid a sum of Rs. 58,943/14/3 on or about 14-11-1949, but the defendant had failed and neglected to pay the balance. In the alternative the plaintiff stated that he had supplied the said goods to the defendant not intending to do so gratuitously and that the defendant was liable to compensate the plaintiff for the benefits enjoyed. By the amendment the plaintiff wishes to add a paragraph making an alternative case that if the agreement between the plaintiff and the defendant as mentioned in para 1 of the original plaint be discovered void, the defendant was bound to compensate the plaintiff for advantages enjoyed by the defendant under the contract.

2. I shall proceed on the footing that the plaintiff wishes to introduce an alternative cause of action and for that purpose requires fresh leave under Clause 12 of the Letters Patent. I might mention that in the original plaint leave under Clause 12 was asked for and obtained at the time of the filing of the plaint. Therefore, the short point that arises is as to whether it is possible at this stage to add by way of amendment an alternative cause of action during the pendency of the suit, a cause of action which requires fresh leave under Clause 12 to be granted.

3. <CITATION> ', 34 Cal 619 (A), a Special Bench of <ORG> presided over by <NAME> held that leave of the <ORG> under Clause 12 of the Letters Patent had to be obtained before the institution of the suit. In that case the leave had been granted by the Registrar of this <ORG> in its Original Side, but it was held that the Registrar had no jurisdiction to grant such leave and the defects could Rot be cured by grant of leave by a Judge at that stage of the litigation, namely, after the suit had already been instituted. The plaint was, there-lore, directed to be taken off the file.

4. In -- '<NAME> v. <NAME>', 15 Bom 93 (B) it was held that the leave granted under Clause 12 of the Letters Patent was confined to the cause or causes of action set forward in the plaint at the time when leave was granted; hence the plaint could not be amended so as to alter the original cause of action or to introduce a different cause of action which would require leave under Clause 12 of the Letters Patent. The Courtcould not try such a different cause of action except in another suit duly instituted.

5. <CITATION> ', AIR 1939 Bom 345 (C), a suit was originally instituted in the name of a firm in which there were six partners. The defendant took the defence that he had not entered into any transaction with the firm but individually with one of the partners. Thereupon, the plaint was amended by substituting that partner in his individual capacity as the plaintiff. In the plaint as originally filed leave under Clause 12 had been obtained. But when the amendment was made no leave was asked for or granted. It was held that the Court had no jurisdiction to try the suit inasmuch as the leave originally granted related to a cause of action which had been completely changed. <NAME>, J., said as follows :

"The cause of action which is a right to sue vested in six persons alleged to be doing business together, is not the same as the right which exists in one individual. In the first case these persons are together appointed agents for the defendant and the act of one or the other of them will bind the rest. They will all be liable and can only give a joint discharge. When the claim is made by <NAME>, he alone is alleged to be agent appointed by defendant, he alone is under the obligation to carry out instructions and he alone is liable to the defendant and can enforce the claim for damages or indemnity, if any, against the defendant. The two causes of action being thus entirely different and no leave having been obtained when <NAME>, the individual, desired to carry on the suit, this issue must be found against the plaintiff and the suit should therefore tie dismissed with costs."

It will be observed that the learned Judge does not decide whether leave could properly have been obtained when the amendment was made. Mr. <NAME> argues that the case is an authority for the proposition that such leave' could have been obtained if asked for. Obviously, that is not so. The learned Judge finds that the leave originally obtained could not be made to serve the purpose of the suit as it was framed when it came up for hearing. The learned Judge did not deal with the question as to whether the plaintiff could have obtained such leave at the stage if he had asked for it.

6. The next case to be considered is --' <CITATION> , 24 Parganas', AIR 1946 Cal 23 (D). In this case the plaintiff company sued <ORG> upon six agreements by which it was alleged that the Board guaranteed to supplement the net earnings of the Company. Leave was obtained under Clause 12 of the Letters Patent at the time of the institution of the suit. When the suit came to a hearing before Gentle J., the point was taken on behalf of the defendant that the agreements were not executed according to law. Thereupon, both the plaint and the written statement were ordered to be amended. By the amendment the plaintiff took alternative pleas under Sections 65, 70 and 72, Contract Act , but no fresh leave was asked for or obtained. The learned Judge said as follows : "The wording and meaning of Clause 12 of the Letters Patent, 1865, is clear, namely, that the <ORG>'s leave shall previously be obtained before it has jurisdiction to receive a suit for which leave is required. The grant of leave is a condition precedent to the <ORG> having jurisdiction to receive such a suit. An amendment to a plaint raising a new cause of action upon which a claim is made is not a fresh suit but is an additional claim made in an existing suit. The <ORG>'s leave is previously required in respect of a cause of action before the <ORG> can have jurisdiction to receive the suit in which it is alleged. Further in the present case leave to sue was not sought with respect to the cause of action in the amendment either at the time application was made to amend or when leave was given for the amendment or when the plaint with the amendment was presented to the <ORG>. ............ In my opinion, the <ORG> has no jurisdiction to receive, try and determine the claims upon the causes of action in the amendment to the plaint since leave was not previously obtained in respect of those causes of action before the suit in which those claims are made was instituted in this <ORG>." In this case the amendment was allowed but leave although necessary was not asked for. Therefore, the <ORG> had not been called upon to decide whether such leave could have been asked for. Mr. <NAME> argues that the words "Further, in the present case leave to sue was not sought with respect to the cause of action in the amendment ............... when leave was given for the amendment or when the plaint with the amendment was presented to the <ORG>"show that the <ORG> considered that such leave might have been granted if asked for. I do not think that is a correct reading of the judgment. The learned Judge was no doubt referring to the fact that leave had not been asked for although required in respect of the amendment, but he also distinctly held that an amendment to a plaint, raising a new cause of action upon which a claim was made, was not a fresh suit but was an additional claim made in an existing suit, so that leave under Clause 12 could not be granted at any stage subsequent to the institution of the suit.

7. The next case cited is --'Benoy Shankar v. <NAME>', (E). In this case the plaintiff sued the defendant for partition o£ joint family properties, a part of which was situated outside jurisdiction so that the suit required leave under Clause 12 which had been obtained. During the pendency of the suit, certain terms of settlement were arrived at, not only between the parties on record but other parties who were by the compromise decree itself joined as defendants. At the time the compromise was filed no fresh leave under Clause 12 of the Letters Patent was obtained. It was held that the effect of adding new parties by an amendment was to enlarge the scope of the suit and, therefore, fresh leave had to be obtained as condition precedent to a, <ORG> obtaining jurisdiction against the added parties. <NAME>, J., said as follows :

"It is not disputed that out of the four properties three were situated outside and one within the jurisdiction of <ORG>. "Leave was, therefore, necessary for filing a suit for partition, which is a suit for land against these minors. No such leave was obtained. It is now established that leave originally obtained at the time of the filing of a suit does not cover an amended plaint. Where the defendant is added fresh leave must be obtained when the suit was originally filed. It is contended that there was no change in the cause of action. Even so, if new parties are joined against whom it intended to proceed in the suit and to obtain a decree, the obtaining of the leave is imperative, because it is the foundation of the jurisdiction of the <ORG>. The <ORG> gets jurisdiction to decide the suit against the parties only if it grants leave which is condition precedent. No leave was obtained to proceed against the newly added defendants and it follows that the <ORG> never get any jurisdiction to make any decree or order against them in the suit."

8. There is no doubt that according to the learned Judge, when fresh parties are added it is permissible to the <ORG> to grant fresh leave. Mr. <NAME> argues that if fresh leave could be granted during the pendency of the suit in the case of additional parties, there does not seem to be any objection to the granting of such leave in the case of an additional cause of action. In my opinion, he is not right.

9. According to Section 22 , Limitation Act , where, after institution of a suit, a new plaintiff or defendant was substituted or added, it not being a case of the assignment or devolution of interest during the pendency of the suit or transposition of a party, the suit is to be regarded, as against the added party to have been instituted when he is made a party. Therefore, the case of the addition of a party during the pendency of the suit stands on quite a different footing to the addition of a different cause of action against the same party.

10. The point was recently considered by <NAME>, J., in an unreported judgment dated 25-7-1951, <ORG> v. The State of West Bengal (F). The application was in a sense remarkable. The suit had been filed without any leave under Clause 12 of the Letters Patent on 14-5-1950. Long after the suit had been filed, an application was made, not in the suit, but entitled "In the matter of clause 12 of the Letters Patent etc.", for grant of leave under Clause 12. The learned Judge relying on --' <CITATION> ) (ibid) held that leave could only be granted in respect of, the suit at the time of the presentation of the plaint and not afterwards. The learned Judge also relied on a similar view in an unreported judgment delivered on 11-8-1950 by <NAME>, J., in --'Sree Sree Iswar Jew v. <NAME>', in Suit No. 3797 of 1949 (G).

The result of all these authorities may be summarised as follows :

1. Where leave under Clause 12 of the Letters Patent is necessary, the granting of such leave is the condition precedent to the <ORG> having jurisdiction to entertain the suit.

2. Therefore, such leave is to be obtained at the time of the institution of the suit. In the Original Side of this High Court, the practice is to present the plaint before the Master who places it before a Judge of this Court for granting the requisite leave. It does not mean, however, that such leave is granted after the institution of the suit. For the purpose of limitation the date of the presentation of the plaint may be relevant but the leave when granted is nevertheless leave granted prior to the institution of the suit.

3. Where by amendment of a plaint, a cause of, action is altered or a new cause of action I added, it is not a new suit but the old suit in a new form. In such a case, no amendment can be ordered if it requires leave to be granted under Clause 12 of the Letters Patent at the time of the amendment.

4. It follows that leave under Clause 12 of the Letters Patent cannot be granted in such a case, at any stage after the institution of the original suit.

5. But where a new party is added, the suit as regards the added party must be deemed to have been commenced on the date when he was so added. Consequently, if the cause of action against the added party requires leave under Clause 12 of the Letters Patent it is open to the <ORG> to grant such leave, if, asked for at the time of the amendment. In fact, if such leave has not been asked for or obtained in such a case, the <ORG> has no jurisdiction to entertain the suit against such an added defendant.

11. I must admit that these rules are quite artificial and there does not seem any logical reason why the <ORG> should not be able to grant fresh leave under Clause 12 of the Letters Patent at the time of amendment where a new or alternative cause of action is introduced. But that is a question of altering the law and the present case must be dealt with ac cording to the <ORG> as it stands. For the reasons aforesaid, this application fails and must be dismissed with costs.


<NAME>, J.

1. This is an appeal by <NAME>, second judgment-debtor in E. P. No, 234 of 1951, against an order by the Principal Subordinate Judge of Kozhikode directing his arrest and commitment to prison, on findings that he dishonestly transferred, concealed or removed assets after the institution of the suit and furthermore, that he had means to pay at any rate a substantial portion of the decretal amount since the date of the decree.

2. The antecedent history is briefly this. The decree-holder is <ORG>, who gave financial accommodation to a concern called <ORG> which commenced in 1948 and did business in timber, banking and soon. It fell into difficulties and the managing partner committed suicide in March 1949. The appellant who was one of the partners filed an application, Ex. A. 1, for overdraft accommodation to <ORG> to the extent of Rs. 50,000 on the strength of which the <ORG> manager of the local branch gave the firm financial accommodation. According to the evidence of the Secretary of the <ORG>, P. W. 1, the head office took exception to this and dismissed the Branch manager from service. The decree under execution by the bank in E. P. No. 234 of. 1951 was in O. S. No. 7 of 1949 for the recovery of Rs. 9,000 which with interest had increased to Rs. 12,600. The bank filed another suit, shortly afterwards, O. S. No. 14 of 1949, for the recovery of Rs. 36,000 and obtained a decree against the partners. In E. P. No. 420 of 1950 in O. S. No. 14 of 1949 they first sought to arrest three of the partners including the appellant. That petition was dismissed by the same learned Subordinate Judge on 31 (sic)-G-1951, as he was satisfied on the material placed before him, that none of the respondents had means to pay off the decree debt or even a substantial portion of it. Despite the dismissal of that execution petition, the bank pressed for the arrest of the appellant in execution of the smaller decree in O. S. No. 7 of 1949 and placed more material before the <ORG>. The learned Subordinate Judge quite rightly held that the previous order in E. P. No. 420 of 1951 did not operate as 'res judicata'.

3. The appellant in an application to the bank, Ex. A. 1 dated 21-2-1948 said he belonged to a tarwad owning property worth 21/2 lakhs to 3 lakhs. The value of this tarwad property was not disputed, but it was contended that he cannot get a separate share or enforce any partition during his mother's lifetime. But under the Madras Marumakatayam Act he was entitled to separate maintenance from the tarwad. The amount, if any, of such separate maintenance, he did not disclose. He was admittedly living at Kozhikode, away from his tarwad, working as an insurance agent and said that he was earning about Rs. 110 a month by way of commission. Then in his own application, Ex. A. 1, <NAME> gave particulars of assets valued at Rs. 50,000. They included fixed deposit in <ORG> of Rs. 15,000, Rs. 14,500 in <ORG> 'kuri' or chit fund and so on. His explanation for the disappearance of the assets in Ex. A. 1 is merely to the effect that they were withdrawn by him and invested in the business of <ORG>. <NAME> was not able, <NAME>wever, to prove by the production of any voucher, receipt or account the fact that he invested these moneys in this business. The learned Subordinate Judge appears to have quite rightly rejected this unsatisfactory explanation.

4. The appellant then further admitted that he had his own banking business till the end of 1948 and that the annual outturn was about Rs. 25,000, but he said that he had never maintained accounts either for this or for a timber business he had previously. Finally the appellant admitted that he discharged an overdraft account with <ORG> upto Rs. 75,000 before March 1948. The teamed Judge made a note in the examination of the appellant that his demeanour was highly questionable and substantially disbelieved his evidence. In Ex. A. 1 he described himself as Managing partner of the firm of <ORG> and said that this was correct, belying his previous assertion that he was only a figure head and that the real management was with one <NAME> who, it is said, committed suicide. These were the main circumstances from which the learned Subordinate Judge arrived at his two findings on which he directed the arrest and detention of the appellant in prison.

5. Mr. <NAME> has strenuously urged that the decree-holder bank has not discharged the onus placed upon them under Section 51 proviso (a)(2) that after the institution of the suit the judgment-debtor has dishonestly transferred, concealed or removed any part of his property, and under proviso (b) that he has or has had since the date of the decree the means to pay the amount of decree or some substantial" part thereof and refuses or neglects to do so. It is true that in this case the decree-holder has not been able to point precisely to any particular dishonest transfer or concealment, or to specific money in possession of the judgment-debtor out of which he could have paid the decretal amount since the date of the decree. If <ORG> were to insist on specific evidence of this description, which amounts to positive proof, it would mean that judgment-debtors by skilful concealment of their assets and resourceful evasion will defeat decrees against them.

6. The liberal provisions of Section 51 in favour of the judgment-debtor were enacted in Act 9 of 1935. As stated in the Objects and Reasons, that Bill was the outcome of the recommendations, of <ORG> in India to the effect that in the case of industrial workers in receipt of less than Rs. 100 a month, arrest and imprisonment for debt should be abolished, except where the debtor has been proved to be both able and unwilling to pay. The Bill sought to amend the Civil Procedure Code of 1908 so as to protect honest debtors of all classes, and not of the industrial worker class only, from detention in civil prison and to confine such provision to debtors proved to be recalcitrant or fraudulent. The Act therefore applied to all judgment-debtors; nor was the protection restricted only to small debtors. If the extreme view urged by Mr. <NAME> is to be accepted that before a judgment-debtor can be committed to prison a decree-holder is bound to establish by strict evidence and proof that there has been a dishonest transfer by a registered document, or a concealment of assets in some other manner, or that the judgment-debtor had in his actual possession in his own house a sum of money out of which he could have paid or discharged a substantial portion of the decree, a premium would be put on evasion by judgment-debtors, rendering decrees obtained at great cost and expense nullified, and the pendulum will so swing in a direction in favour of judgment-debtors that legislation for the protection of decree-holders may have to be introduced.

7. In my view it is perfectly open to a <ORG> to apply a judicial corrective to the extreme lengths to which the onus which Act 9 of 1935 casts on decree-holders is sought to be taken by adopting the view that it is perfectly open to an executing <ORG>-on all the material placed before it to come to an inference as regards the statutory findings required by provisos (a)(2) and (b) of Section 51, Civil P. C. It is no doubt true that the onus rests on the creditor to -prove the debtor's ability to pay, and mere disbelief of the latter's statement that he had no means to pay is not sufficient. Where, however, there, is sufficient material shown to warrant an inference, as in the present case, that the judgment-debtor has actually been in the possession of substantial assets a few months prior to suit, an inference is perfectly justifiable that he has since the institution of the suit dishonestly concealed them, and furthermore, that he has since the date of the decree means to pay a substantial portion of it from assets he is concealing from the <ORG>. This is a case in which the appellant appears to be the only partner in this business venture which failed who appears to be in a position to pay something towards this decree. We can find no real grounds for setting aside the findings of the learned Subordinate Judge on the material placed before him.

8. The recognised practice in England in appropriate cases, as laid down in -- 'Barefoot v. Clark', 1949-2 KB 97 (A) and -- 'In re a Judgment-debtor', 1935) 51 TLR 524 (B) is not to make an order of committal to prison on the first application but to order payment by installments. I can see no impediment in this practice being adopted, in suitable cases under Section 51, Civil P. C. read with Order 21, Rules 39 and 40, although they do not specifically direct an order for installments first. The fixation of installments after an enquiry into the means and the ability of the judgment-debtor to pay in many cases is much fairer to the judgment-debtor who, whilst not being in a position to discharge the decree in full, can certainly pay something towards its discharge. The fixation of installments helps to sridge the wide gulf between the dismissal of an execution petition for arrest on a decree-holder failing strictly to discharge the onus resting on him under the proviso to Section 51, and the commitment to prison of a judgment-debtor who while in a position to pay something simply, cannot discharge the decree in full as he has no immediate means to do it. After the installments have been fixed by the <ORG>, then a failure to comply with the court order would immediately justify arrest and commitment to prison. In our view this procedure would be perfectly admissible under proviso (b) to Section 51. It is equitable both to decree-holder and judgment-debtor and only sends to prison a judgment-debtor who refuses or neglects to pay towards the decree something which the <ORG> has found after, hearing him to be within his means to pay.

9. We do not however think this a suitable case in which this equitable procedure can or should be adopted and confirming the findings of the learned Sub-Judge dismiss the appeal with costs.


<NAME>, J.

Civil Appeal No. 5407 of 1992 (Arising out of SLP(C) No. 12215/92)

1. Leave granted.

2. By the impugned judgment dated 13th December, 1991 in L.P.A. No. 8 of 1985, the learned Judges of <ORG> of <ORG> reversed the judgment of the learned Single Judge. As a result of the impugned judgment, the appellants, who were promoted as Assistant Engineers are in danger of being placed junior to persons who had obtained lower ranks than the appellants at the time of their appointment as Junior Engineers. At the time of selection to the post of junior Engineers, the appellants were allotted higher ranks on the basis of merits in comparison to the respondents. Writ Petition filed by some of the candidates was rejected by <ORG> on the ground of laches and also for the reason that the selection had to be broad based, A similar petition was filed by the present respondents and it was dismissed by the learned Single Judge which was reversed by the impugned judgment.

3. The question which arises in the present appeal is whether or not candidates who were fully qualified to be appointed as Junior Engineers on the dates of interview, but whose results had not been declared on the dates of submission of their applications were entitled to be considered for appointment to the post of Junior Engineer. If the answer is in the affirmative, the appellants who had become qualified on the dates of interview and had admittedly acquired higher marks in the interview were rightly appointed as Junior Engineers on the basis of their merits and were rightly promoted to the post of Assistant Engineer by reason of seniority in preference to the respondents who were also appointed as Junior Engineers and subsequently promoted, but placed junior to the appellants.

4. Advertisement inviting applications for appointment to the post of Junior Engineer was published on 9.6.1982. The last date for submitting applications was specifically stated to be 15.7.1982. By that day, the appellants and the respondents had submitted their applications. The appellants had appeared for the B.E.(Civil) examination and had been awaiting their results until the results were published on 21.8.1982. Interviews were held on various dates commencing on 24.8.1982. The appellants were declared selected on 21.4.1983 and appointed as Junior Engineers. By reason of their merits, they were placed senior to the respondents. The respondents contended in <ORG> that since the appellants were not qualified to apply for the post on the date of submission of applications as their results had not been declared until after that date, they were not qualified to appear for interview and the results announced on the basis of interview and the marks obtained by them were invalid and their applications ought to have been rejected, the announcement of the results prior to the interview and their obtaining higher marks, notwithstanding.

5. The respondents' challenge against the selection of the appellants did not appeal to either of the two Single Judges who heard the Writ Petitions filed by some of the respondents. The learned Judges in their respective decisions held that the challenge was belated and the selection of the appellants who had obtained higher marks and who had been fully qualified prior to the dates of interview made the whole selection process broad based.

6. The learned Judges of <ORG>, however, taking a technical view and on the wrong assumption of mala fide on the part of the appointing authority, reversed the judgment of the learned Single Judge and, by their impugned judgment, held that the appellants were wrongly selected.

7. Certain statements in the impugned judgment show that the learned Judges of <ORG> assumed mala fide on the pan of the concerned authorities in selecting the appellants. We have perused the relevant files and we see nothing in them suggesting mala fide of any kind on the part of the concerned authorities. The simple question is whether the appellants were rightly appointed.

8. It cannot be gainsaid that on the dates of interview the appellants were fully qualified, for their B.E. (Civil) examination results had been declared on 21.8.1982. The interviews were held on 24.8 1982 and subsequent dates. It cannot also be gainsaid that on 15.7.1982 which was the last date for submission of applications, the B.E. (Civil) examination result in respect of the appellants had not been declared, although they were awaiting their results of the examination conducted earlier. The advertisement notice No. 2 of 1982 dated 9.6.1982 specifically stated:

...The applicants should not be more than 30 years and not less than 18 years of age on the 1st January, 1982 and should possess the qualification as noted against each post.. Attested copies of the following certificates (original to be produced at the time of interview before <ORG>) should be attached with the application:-

(4) Academic/Technical Examination Certificate.

Incomplete applications and those not accompanied by the requisite certificates shall not be entertained.

9. Mr. <NAME>, appearing for the appellants, contends that on the dates of interview the appellants were eligible for being called for interview. Their applications were not liable to be rejected, for they had the requisite qualifications at the crucial time, namely, the dates of interview. It is true that when the applications were submitted, the appellants had not obtained the results and were awaiting the same, but the intent of the appointing authority, as clearly stated in their affidavit, was to fallow candidates who had obtained the necessary qualification on the dates of interview to appear for interview. The appellants had fulfilled all the necessary qualifications for being interviewed and their selection on the basis of the results announced on the basis of the marks obtained by them was rightly made.

10. Mr. <NAME> refers to rule 37 of the <ORG> Business Rules and submits that the principle of that rule is applicable to that case of the appellants, although that rule was meant specially for selection by <ORG> and the present selection was not one made by the <ORG>. Nevertheless, the principle adopted by the <ORG> Business Rules makes a selection broad based, as found by the learned Single Judge, and the best talents available for recruitment are not rejected merely by reason of the fact that the results of the examination were, for no fault of theirs, delayed until after the last date prescribed for submission of applications, but were announced before the dates of interview.

11. Rule 37 of the Public Service Commission Business Rules reads;

R.37. Applications of candidates who have appeared in the examination, the passing of which may make them eligible to appear in an interview for recruitment to a post to be made otherwise than by a competitive examination, but results whereof have not been declared up to the date of making of the application, may be entertained provisionally, but no such candidate shall be permitted to take the interview if he is declared as having failed in the examination or if the results are not available on the date the viva-voce test is held".

12. Counsel for the respondents submits that rule 37 has no application to the instant case, for the selection was not made by <ORG>. In any case, the advertisement notice had not stated that the applications of candidates whose results had not been announced would be allowed to appear for the interview provisionally, as required by rule 37.

13. It is true rule 37 is in terms applicable only to <ORG> Candidates and due notice of provisional entertainment of their application, subject to their passing examination before the date of interview, is a requirement peculiar to rule 37 and is not applicable to the present case.

14. If the principle of rule 37 is by analogy applicable, the fact that notice of provisional entertainment of applications, subject to passing of the examination before the date of interview, is a requirement in the interests of candidates who fell within that category. The appellants are by analogy persons of that category, but they have no complaint on any such ground.

15. The fact is that the appellants did pass the examination and were fully qualified for being selected prior to the date of interview. By allowing the appellants to sit for the interview and by their selection on the basis of their comparative merits, the recruiting authority was able to get the best talents available. It was certainly in the public interest that the interview was made as broad based as was possible on the basis of qualification. The reasoning of the learned Single Judge was thus based on sound principle with reference to comparatively superior merits. It was in the public interest that better candidates who were fully qualified on the dates of selection were not rejected, notwithstanding that the results of the examination in which they had appeared had been delayed for no fault of theirs. The appellants were fully qualified on the dates of the interview and taking into account the generally followed principle of rule 37 in the State of Jammu & Kashmir, we are of opinion that the technical view adopted by the learned Judges of <ORG> was incorrect and the view expressed by the learned Single Judge was, on the facts of this case, the correct view. Accordingly, we set aside the impugned judgment of <ORG> and restore that of the learned Single Judge. In the result, we uphold the results announced by the recruiting authority. The appeal is allowed in the above terms. However, we make no order as to costs.

CIVIL APPEAL NO.5408 OF 1992 (Arising out of SLP(C) No. 10503/92)

16. Leave granted. In view of our judgment in Civil Appeal No. 5407 of 1992 (arising out of SLP(C) No. 12215 of 1992), this appeal is also allowed. However, we do not make any order as to costs.

<NAME>, J.

17. Although I agree with Brother <NAME>, J., that the appeals deserve to be allowed and the seniority of the appellants and respondents, who were selected as Junior Engineers in 1982, had to be determined by the marks they secured in the interview conducted by <ORG> but with profound respect, in my opinion, they are entitled to this relief not as a matter of law but due to equitable considerations arising in peculiar facts and circumstances of the case. I would have refrained from expressing any opinion on eligibility of the appellants who, admittedly, were not possessed of requisite qualifications till the last date of submission of forms for selection as Junior Engineer but if the submission of the appellants is accepted and it is held that their applications were not liable to be rejected as they acquired the requisite qualifications prior to commencement of the interview then it is likely to create misapprehension about the legal implications of such notification not only in the State of Jammu & Kashmir but even other States where similar rules are in force or where similar advertisements may be issued.

18. To appreciate legality of the issue involved the full text of the advertisement dated 9th June, 1982 is extracted below:

GOVERNMENT OF JAMMU AND KASHMIR STATE RECRUITMENT BOARD Advertisement Notice No. 2 of 1982 Dated 9.6.1982 Applications are invited on the prescribed form along with a self addressed envelop of 50 paise and one copy of passport size photograph duly attested which should reach the office of the undersigned on or before 16th July, 1982 from the permanent residents of J&K State who are eligible for the posts shown in the annexure to this Notification. The applicants should not be more than 30 years and not less than 18 years of age on the 1st January, 1982 and should possess the qualification as noted against each post. Upper age limit is however, relaxable in the case of those in <ORG>. service and candidates representing scheduled caste by 5 years and 2 years respectively and in the case of Ex-servicemen upto 45 years.

Vacancies shall be reserved for SC candidates where applicable under rules.

Attested copies of the following certificates (original to be produced at the lime of interview for <ORG>) should be attached with the application:-

1. Matriculation/Higher Secondary Elect. Examination.

2. Permanent resident certificate.

3. Character certificate.

4. Academic/Technical Examination Certificate.

5. Marks certificate of each examination.

6. Experience certificate, if any.

Applicants who arc already in <ORG>. service should submit their applications through their heads of <ORG>/offices. They can however, send a copy of application direct to <ORG> but such applications will be considered only on receipt of the , copy of application through proper channel.

Persons receiving stipend under <ORG> will be considered for employment provided they refund the stipend in full. These having received loans are, however, debarred from employment. Candidates should indicate the stipends/loan, if any, drawn in the application. Candidates who fulfil the qualifications prescribed for appointment to the costs advertised shall alone be eligible for being called for interview and others need not therefore apply.

Fresh candidates who are selected shall be governed under the J&K Apprentice (Recruitment) Rules, 1981. Since the Rules have been stayed by <ORG> the fresh candidates recruited would be entitled to only half of the pay and allowances of the post if the rules impugned subsequently upheld.

Candidates applying for the posts mentioned in the Annexure shall have to appear on their own expenses for practical test and/or interview before the Board.

[Emphasis supplied] Sd/- Hamid Ullah Administrative Officer <ORG> Srinagar Annexure to advertisement Notice No. 2 of 1982 dated 9.6.1982.

SI. Name of the Grade Qualifications No. Post

1. B.E. Civil 875-1400 B.E. Civil 2. Sectional 680-1240 3 years diploma Officer (Elect.) in Elect. Engg. 3. Sectional 680-1240 3 years diploma Officer (Civil) in Civil Engg. 4. Draftsman 680-980 2 years draftsman (Civil) Course in Civil Engg.

The relevant part of the notification has been underlined by me. It can be divided in three parts. The first and the most important part required a candidate to apply on or before, the date specified, if he satisfied the requirement of, (i) being a permanent resident of Jammu & Kashmir, (ii) was eligible for the post shown in the annexure to the notification; (iii) was not more than 30 years and not less than 18 years of age on 1st January, 1982; and (iv) was possessed of the qualifications as noted against each post. If the notification would have stopped there, probably, much could be said in favour of the appellants but the second part required every candidate to file authenticated copy of the certificate in proof of each of the conditions. The notification further provided that, 'incomplete applications and those not accompanied by the requisite certificates shall not be entertained'. The notification, therefore, provided not, only, the conditions which a candidate was required to possess when applying for the post mentioned in the notification but he was also required to support it with authenticated certificate and if he failed to do so then the application was not liable to be entertained. In legal terminology where something is required to be done and the consequences of failure to do so are also provided then it is known as mandatory. The mandatory character of possessing the requirements as provided in the first part of the notification stands further strengthened from the third and last part of the notification which prohibited the candidates from applying if they did not possess the requisite qualifications. In view of these clear and specific conditions laid down in the advertisement those candidates who were not possessed of the P.E. qualifications were not eligible for applying nor their applications were liable to be entertained nor could they be called for interview. Eligibility for the post mentioned in the notification depended on possessing the qualification noted against each post. The expression, 'shall be possessed of such qualification' is indicative of both the mandatory character of the requirement and its operation in presentii. That is a candidate must not only have been qualified but he should have been possessed of it on the date the application was made. The construction suggested by the learned Counsel for the appellant that the relevant date for purposes of eligibility was the date of interview and not the date of application or 15th July, 1982 the last date for submission of forms is not made . out from the language of the notification. Acceptance of such construction would result in altering the first part of the advertisement prescribing eligibility on the date of applying for the post as being extended to the date of interview. If it is read in the manner suggested then the requirement that incomplete applications and those not accompanied by the requisite certificates shall not be entertained, shall become meaningless. Purpose of filing certificate along . with application was to prove that the conditions required were satisfied. Non-filing of any of the certificates could have resulted in not entertaining the application as the requirements as specified would have been presumed to be non-existent. Fulfilment of conditions was mandatory and its proof could be directory. The former could not be waived or deferred whereas the. defect in latter could be cured even subsequently. That is proof could be furnished till date of interview but not the eligibility to apply for the post. Any other construction would further be contrary to the last part of the notification.

19. Nor can the notification, inviting applications, be construed in light of what was stated by the <ORG> in the affidavit filed by it in <ORG>. The stand of the <ORG> that it always intended to permit candidates who qualified till date of interview was against record. Such subsequent embellishment by <ORG> to shield its officers of permitting such candidates who were not qualified cannot be countenanced. The courts should not approve of it as it emanates in unfairness and ends in arbitrariness. Every candidate appearing in the B.E. examination could not have knowledge, as was spelt out by the <ORG> in its affidavit before <ORG>, except probably those few who despite clear words of the notification choose to apply may be with knowledge that the interview shall not be held till their results were announced. The language of the notification must have prevented large number of candidates who must have appeared in the B.E. examination from applying as they were not qualified in terms of it whereas others of same group or class stood to gain due to intention of government which was not known to a common man and was put up before <ORG> in reply to the writ filed by the respondent. It is not borne out from the record. The appellants, thus, who were not only not qualified and were not entitled to apply and whose applications were not liable to be entertained by this method got an unfair advantage over those who for lack of knowledge of <ORG>'s intention did not apply. May be no one from those who were prevented from applying due to unawareness of the intention of <ORG> which came to light in <ORG> only could challenge the selection yet it is the duty of the <ORG> under the Constitution once it is apprised of true facts to make the <ORG> act fairly. I do not want to say further on this aspect except that the affidavit filed by the <ORG> could not be correct to which I shall advert when I deal with the other submission founded on Rule 37. I am, therefore, of the opinion that the appellants being ineligible on the date of application they could not have been called for interview. The conduct of the appellants in applying without being qualified, the unusual behaviour of the <ORG> in keeping such applications alive and not intimating the candidates that their applications could not be entertained and above all the <ORG>'s affidavit that their intention was to allow candidates who had obtained necessary qualifications on the date of interview leave much to be desired. Such practice should be discouraged not in the interest of those who appeared and were placed lower in merit but for sake of those who have neither the approach nor have the financial resource to be aware of such uncommon happenings.

20. Rule 37 of the Public Service Commission Rules reads as under:

37. Applications of candidates who have appeared in the examination, the passing of which may make them eligible to appear in an interview for recruitment to a post to be made otherwise than by a competitive examination, but results whereof have not been declared upto the date of making of the application, may be entertained provisionally, but no such candidate shall be permitted to take the interview if he is declared as having failed in the examination or if the results are not available on the date the viva-voce test is held. The advertisement notice issued by the <ORG> shall carry a note to this effect invariably.

This shall not apply to applications for sitting in a competitive examination in which case the applicants shall have to be in possession of the prescribed qualifications on the date of making the application."

Efficacy of the rule or the objective of its enactment to throw open the competition by making it more broad based and attract best talents cannot be disputed. But the issue involved is if it could be extended by analogy to any selection or competition held by any other body. Unfairness of construing the notification, in the manner suggested, has already been dealt with. Rules are framed under the Statute to carry out the objective of the enactment If the rule making authority goes beyond the power conferred on it the rule is rendered invalid. A rule framed under one Statute, therefore, cannot be invoked for carrying out the objective of another enactment. I have, therefore, grave doubt if rules framed by <ORG> could be utilised for purposes of construing the notification issued by the department of Government which has separate set of rules.

21. Having dealt with legal aspect it is necessary to be stated that it transpired from the records which were produced by the learned Counsel for State of Jammu & Kashmir that a few days before the interview of first batch of candidates was to commence the result of B.E. was announced. Some of the appellants who had applied, even though they were not qualified, approached the Secretary in the department concerned to direct the <ORG> to interview them as they were qualified now. The matter was examined thereafter and after ascertaining from the <ORG> that such practice was prevalent a decision was taken by the appropriate authority to follow the same. Therefore it was not a case where the rule of the <ORG> need be extended by analogy but factually the appropriate authority had taken decision to follow the same. It was thus adoption of the Public Service <ORG> Rule for purposes of calling the appellants for interview by the <ORG>. Whether this could be done or not and if it could have been done then at what point of time need not be gone into as I agree with <ORG> that it would be unfair to quash the selection after such a long time. But before parting with this aspect it is necessary to be stated that the official who filed the affidavit in <ORG> did not either peruse the records before filing the affidavit or he deliberately attempted not to place the facts in true perspective. In either case it was bad. And the Government should chastise such officers who do not place the facts correctly even before courts. From the record it appeared that the <ORG> before issuing interview letters had taken a decision that those candidates who were not qualified were not entitled to be called. It was only after the result was announced that the Secretary to the Government, at the instance of some of the candidates, got the matter examined. To state, therefore, that the Government intended from the beginning to call such candidates who qualified at the time of interview was incorrect and against the record.

22. What has persuaded me, however, to allow the appeals, is not that there was no illegality in calling the appellants for interview or that the <ORG> was justified in taking the decision to follow the practice of <ORG> but similar claim of the respondents had been rejected earlier by <ORG> and by the time it was allowed more than ten years had elapsed since the examination was held and selection was made. <ORG> for this very reason did not enter into the question of eligibility and tried to adjust the equities between the parties by directing that all those candidates, namely, the appellants who were not qualified on the date of application should be placed as junior to respondents who had applied earlier and were qualified. The order of <ORG>, in my opinion, is manifestly unjust. Once the eligibility bar was lifted by <ORG>, for whatever reason may be as said by it due to passage of time or because of erroneous application of Rule 37 of the Public Service <ORG> Rules, the appellants who were subjected to same interview as the respondents and were found better qualified and secured higher marks, could not be placed junior to others. The equity does not know the half way. Once the appellants were held to be eligible may be not strictly under law but on equitable considerations, then it was wholly unjust to place them junior and under those who in the same examination secured lesser marks.

23. I would, therefore, in agreement with Brother <NAME>, J., allow the appeals, set aside the order passed by <ORG> and restore that of the Single Judge.


PETITIONER: SHANKARSAN DASH Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT30/04/1991 BENCH: <NAME>, <NAME>: <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, JAGDISH SARAN (J) CITATION: 1991 AIR 1612 1991 SCR (2) 567 1991 SCC (3) 47 JT 1991 (2) 380 1991 SCALE (1)848 ACT: Civil Services: Recruitment by Competitive Examination- Candidate included in merit list-Whether acquires an indefeasible right of appointment-Filling up of vacancies- Adoption of different policy for general and reserved categories-Whether arbitrary and discriminatory-<ORG>Cadre) Rules, 1954: Rule 4: <ORG>Recruitment) Rules; Rules 3,4,6 and 7; and <ORG>Appointment by Competitive Examination) Regulations:Regulations 2(1) (a), 8 and 13-Applicability of. HEADNOTE: On the basis of the results of the combined Civil Services Examination held by <ORG> for appointment to several Services and the position in the combined merit list for <ORG> and Police Services, Group `B' the appellant was appointed to <ORG>,also Known as <ORG>. Subsequently when certain vacancies arose in <ORG>, due to selected candidates not joining the Service, and only the reserved category vacancies were filled up by the candidates, who had been earlier appointed in <ORG> Service, the appellant who came to occupy top position, represented to the authorities for filling the general vacancies also, but his request was turned down .Hence the appellant filed writ application before <ORG>, which was dismissed in limine . In the appeal before this Court, on behalf of the appellant it was contended that since ultimately several vacancies in the general category of the <ORG> remained unfilled, he was entitled to be appointed in one of them, that since 54 vacancies were notified for general category and he was found qualified for the appointment, the respondent could not refuse to fill up the vacancies, and there was no justification to refuse to follow the procedure adopted in similar situation with respect to the reserved category, in regard to the general category vacancies also and that in view of the relevant statutory rules, the authorities were under a duty to continue with the process of filling up the vacancies until nonremained vacant, and by keeping the posts unfilled, they had acted arbitrarily. 568 On behalf of the respondent-Union of India it was contended that the tentative service allocation for <ORG> was completed before the commencement of the foundational course for the <ORG>, and the process of final service allocation was closed after filling up certain vacancies, which had arisen, since the process for recruitment for the next year had already started, and hence the additional vacancies arising later remained unfilled, that the process followed in connection with the reserved category, was not followed in regard to the general category vacancies on account of vital differences obtaining in the relevant conditions in the two categories, and hence there was no discrimination or arbitrariness, in keeping the general category vacancies unfilled. Dismissing the appeal, this Court HELD: 1.1 Even if vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire an indefeasible right to be appointed. 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. [572A- <CITATION> , 1 SCR 165; <CITATION> ,  4 SCC 268 and <NAME> and Others v. State of Punjab and others,  1 SCR 899, referred to. 1.2 The appellant had not acquired a right to be appointed against the vacancy arising later on the basis of any of the rules, namely, Rule 4 of the <ORG>Cadre) Rules, 1954, Rules 3,4,6 and 7 of the <ORG>Recruitment) Rules, 1954 and Regulations 2(1)(a) and (c), 8 and 13 of the <ORG>Appointment by Competitive Examination) Regulations, 1955.These Provisions do not indicate that all the notified vacancies are to be filled up.[573G,574B] 1.3 From the materials placed before the Court it is fully estab- 569 lished that there has not been any arbitrariness whatsoever on the part of the respondent in filling up the vacancies in question or other vacancies. 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. 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 dose not give any right to appointment. [574E-G] 1.4 The decision to adopt a different policy with respect to filling up of the reserved vacancies is justified on account of the special circumstances. The decision to depart from the confirmed policy was taken after 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. [575B] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8613 of 1983.

From the Judgment and Order dated 21.1.1981 of <ORG> in Civil Writ No. 41 of 1981.

<NAME> and <NAME> for the Appellant. <NAME>, <NAME> and <NAME> for the Respondent.

The Judgment of the Court was delivered by <NAME>, j. This appeal was earlier heared by <ORG> and was referred to <ORG> 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 <CITATION> ,  1 SCR 165; <CITATION> ,  4 SCC 268 and <NAME> and Others v. <ORG> and Others.  1SCR

2. The appellant was selected in the combined Civil Services Examination held by <ORG> for appointment to several services including <ORG> (in short `the <ORG>') and <ORG>'. The examination had been held in October, 1977 and the result was announced in May 1978. A combined merit list for the <ORG> and <ORG>' was announced which included the name of the appellant. Out of the total number of 70 vacancies in the <ORG> announced to be filled up, 54 were of general category and the remaining 16 reserved for Scheduled Castes/Scheduled Tribes candidates. The position of the appellant in the merit list was not high enough to be included in the <ORG> and he was offered appointment to <ORG> (hereinafter referred to as the `DANIP')in Police Service Group `B' which he accepted. On account of several candidates, allotted to <ORG>, the position of the appellant improved and ultimately he was on the top of the list.

3. In June, 1979, 14 Vacancies arose in the <ORG> 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 <ORG>, 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 <ORG> by a writ application under Article 226 of the Constitution, which was dismissed in limine by the impugned order.

4. The case of the appellant is that since ultimately several vacancies in the general category of the <ORG> 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 <ORG>, 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 <ORG> 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 there was no justification to refuse similar benefit to the appellant in the general category.

5. According to the case of <ORG>, the process for the recruitment in question started in 1977, and the tentative service allocation for <ORG> was completed before the commencement of the foundational course in July, 1978. All the candidates selected for <ORG>, excepting those who were eligible to appear at the examination for <ORG> 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 <ORG> `B' were not required to undergo this course. By June, 1978, 7 more vacancies arose on account of candidates not joining <ORG> due to various reasons, and 7 persons in order of merit from the joint list of the <ORG> and the <ORG> `B' were allowed to fill up these vacancies. The last one in this list of 7 candidates was <NAME> 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 24.10.1978 or at the latest by 4.11.1978, in view of the process for recruitment for the year 1978, which had already started. The additional vacancies arising later,therefore, remained unfilled.The entire procedure which is followed for recruitment to the <ORG> 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.

6.Dealing with the appointments to reserved category,it 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 <ORG>, the result of the examinations for the year 1975,1976 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. <NAME>, therefore , did not pursue this plea any further in his final reply.

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 <CITATION> ,  1 SCR 165; <CITATION> ,  4 SCC 268 and <NAME> and Others v. State of Punjab and Others,  1 SCR 899.

8. <CITATION> , (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 <ORG> had recommended earlier, to <ORG> 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 <ORG> 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 <ORG>, it was observed by this Court that it was open to the Government to decide how MANY appointments should be made and although <ORG> 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 <NAME> and Others v. <ORG> 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-

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 <CITATION> 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 <ORG> which sent to the <ORG> only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The <ORG> accordingly made only 17 appointments and stated before the Court that they were unable to select and appoint more candidates as the <ORG> had not recommended any other candidate. In this background it was observed that it is, of course, open to the <ORG> 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 <ORG> and <ORG> before the number of persons selected for appointment is restricted. The fact that it was not for <ORG> to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant.

9. Mr. <NAME> 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. 3,4,6 and 7 of the Indian Police Service (Recruitment) Rules, 1954 and rr., 2(1)(a), 2(1)(c), 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 <ORG> 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 2(1)(a) defines available vacancies as vacancies determined by <ORG> to be filled on the results of the examination, described in Regulation 2(1)(a). Regulation 8 prescribes that the candidates would be considered for appointment to the available 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.

10. The main contention on behalf of the appellant has been, however, that the authorities in keeping the vacancies arising later unfilled, acted arbitrarily. Mr. <NAME> 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 <ORG> 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 <ORG>, 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. <NAME> relied upon certain appointments actually made subsequent to this stage and urged that by those dates the further vacancies in <ORG> 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 have any hesitation in rejecting the argument of the learned counsel in this regard based on the factual aspect.

11. 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.

12. In the result, we do not find any merit in the appeal which is accordingly dismissed, but, in the circumstances, without costs.

N.P.V. Appeal dismissed.