names come to be sponsored by the employment exchange.

Under these circumstances, many

Art. 16] CONSTITUTION OF a deserving candidate is deprived of the right toINDIA be considered for appointment to a215 post under

the State. Better view appears to be that it should be mandatory for the requisitioning authority/ establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wide circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates." 62. Reservation of appointments or postsThe State has every right to recognise a particular community in a particular manner but the same should be for good reasons and after application of mind to all the relevant factors. Such decision must be specific and cannot be left to be inferred from surrounding circumstances. Nor can such a decision be based on irrelevant materials State of Maharashtra v Kumari Tanuja (1999)2 SCC 462 (para 12); see SBI SC/ST Employees' Welfare Assn. v State Bank of India (1996)4 SCC 119. 63. Different method of appointment.Different State Governments in the country may have different methods for providing reservations, and these will be valid as long as the method adopted by a particular State Government does not violate any constitutional provision or statute Nair Service Society v Dr. T. Beermasthan (2009)5 SCC 545 (para 56). 64. Reservation in State services obligations of the High Court- Article 16(4) is an enabling provision permitting the State to lay down a scheme of reservation in State services. However, so far as the question of exercising that enabling power, the High Court, being the high constitutional functionary, would also be alive to its social obligations and the constitutional guideline for having a scheme of reservation to ameliorate the lot of deprived reserved categories like SC, ST and Other Backward Classes State of Bihar v Bal Mukund (2000) 4 SCC 640 (para 38). 65. Right to a share in the governance of the StateEvery citizen or group of people has right to a share in the governance of the State, This includes the Dalits and Tribes, being citizens. The right to seek equality of opportunity to an office or a post under the State is a guaranteed fundamental right to ail citizens alike under Article 16(1), the species of Article 14, the genus Ashok Kumar v State of U.P. (1997)5 SCC 201 (para 23). 66. Rule of rotation in a single postEven though there is a single post, if the Government has applied the rule of rotation and the roster point to the vacancies that had arisen in the single point post and were sought to be filled up by the candidates belonging to the reserved categories at the point on which they are eligible to be considered, such a rule is not violative of Article 16(1) U O.i. v 'Maahav (1997)2 SCC 332 (para 10), 67. Reservation in promotion to a single post whether violative of Articles 16(1) and 14.Relying upon a number of its earlier decisions, the apex court in State of Punjab v G.S. Gill (1997)6 SCC 129 (para 11) observed while reversing the High Court's decision, that "The High C o u r t . . . . is clearly in error in holding that reservation in promotion to a single post and application of carry forward rule and of roster is unconstitutional." 68. Public servant duty of."Every public servant is a trustee of the society and in all facets of public administration, every public servant has to exhibit honesty, integrity, sincerity and faithfulness in implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence and efficiency in the public administration. A public servant entrusted with duty and power to implement constitutional policy under Articles 16(4), 16(4-A), 15(4) and 335 and all interrelated directive principles should exhibit transparency in implementation and should be accountable for due effectuation of constitutional goals" Superintending Engineer v Kuldeep Singh (1997)9 SCC 199.

69. A person does not acquire a legal right to be appointed only because his name appears in select list.A person does not acquire a legal right to be appointed only because his name appears in the select list Pitta Naveen Kumar v Raja Narasaiah Zangiti (2006)10 SCC 261. The State as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to the filling up of the vacancies or an arbitrariness is committed, the concerned candidate will have no legal right for obtaining a writ of or in the nature of mandamus. See Batiarani Gramiya Bank v Pallab Kumar (2004)9 SCC 100. In Shankarsan Dash v Union of India (1991 )3 SCC 47, a Constitution Bench of the court held: "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." In State of Haryana v Subash Chander Marwaha (1974)3 SCC 220, the court held: "The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. It must be remembered that the petition is for a mandamus. Supreme Court has pointed out in Dr. Rai Shivendra Bahadur v Governing Body of the N a Ian da College AIR 1962 SC 1210, that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived." In Pitta Naveen Kumar 1/ Raja Narasaiah Zangiti (2006) 10 SCC 261, the court held: A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of I ndia has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise..." S.S. Baluv State of Kerala AIR 2009 SC 1994. 70. When an order of transfer is passed in lieu of punishment.The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an orderoftransferand based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal Somesh Tewari v Union of India AIR 2009 SC 1399. 71. Fundamental Right under Article 16(1) against the interest and claim of the reserve category candidate under Article 16(4).A Constitution Bench of the court in Indra Sawhney v Union of India 1992 Supp (3) SCC 217 reiterated the need to balance the fundamental right of the individual under Article 16(1) against the interest and claim of the reserve category candidates under Article 16(4) of the Constitution (SCC pp. 734-35, para 808):

"It needs no emphasis to say that the principal aim of Articles 14 and 16 is equality and equality
Art. 16] CONSTITUTION OF INDIA of opportunity and that clause (4) of Article 16 is but a means of achieving the very 217 same

objective. Clause (4) is a special provision though not an exception to clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14. The provision under Article 16(4)conceived in the interest of certain sections of society should be balanced against the guarantee of equality enshrined in clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr. Ambedkar himself contemplated reservation being 'confined to a minority of seats' (see his speech in Constituent Assembly, set out in para 693). No other member of the Constituent Assembly suggested otherwise, it is, thus, clear that reservation of a majority of seats [were] never envisaged by the Founding Fathers. Nor are we satisfied that the present context requires us to depart from that concept." Jitendra Kumar Singh v State of U.P. (2010)3 SCC 119. !n Post Graduate Institute of Medical Education & Research v Faculty Assn (1998)4 SCC 1 : AIR 1998 SC 1767 in para 32 the same principle was reiterated as under (SCC p.22): "Articles 14, 15 and 16 including Articles 16(4), 16(4-A) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserved classes. Such view has been indicated in the Constitution Bench decisions of this Court in M.R.Balajiv State of Mysore AIR 1963 SC 649; T. Devadasan v Union of India AIR 1964 SC 179 and R.K.Sabharwalv State of Punjab tf 995)2 SCC 745:1995 SCC (L&S) 548: (1995)29 ATC 481. Even in Indra Sawhney v Union of India 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1: (1992)22 ATC 385 the same view has been held by indicating that only a limited reservation not exceeding 50% is permissible. It is to be appreciated that Article 15(4) is an enabling provisionlike Article 16(4) and the reservation under either provision should not exceed legitimate limits. In making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of the citizens. The special provision under Article 15(4) [sic 16(4)] must therefore strike a balance between several relevant considerations and proceed objectively. In this connection reference may be made to the decisions of this Court in State ofA.P. v U.S. V. Balram (1972)1 SCC 660 and C.A Rajendran v Union of India AIR 1968 SC 507. It has been indicated in Indra Sawhney v Union of India 1992 Supp (3) SCC 217:1992 SCC (L &S) Supp 1: (1992)22 ATC 385 that clause (4) of Article 16 is not in the nature of an exception to clauses (1) and (2) of Article 16 but an instance of classification permitted by clause (1) . It has also been indicated in the said decision that clause (4) of Article 16 does not cover the entire field covered by clauses (1) and (2) of Article 16. In Indra Sawhney v Union of India 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1: (1992) 22 ATC 385 this Court has also indicated that in the interests of the backward classes of citizens, the State cannot reserve all the appointments under the State or even a majority of them. The doctrine of equality of opportunity in clause (1) of Article 16 is to be reconciled in favour of backward classes under clause (4) of Article 16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality." These observations make it abundantly clear that the reservations should not be so excessive as to render the fundamental right under Article 16(1) of the Constitution meaningless. In Indra Sawhney v Union of India 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385 the court has observed as under (SCC p. 740, para 818): ".... In our opinion, however, the result of application of carry-forward rule, in whatever manner it is operated, [shall] not result in breach of 50% rule." Therefore, utmost care has to be taken that the 50% maximum limit placed on reservation in any particular year by the court in Indra Sawhney v Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Simp 1 ; (1992)22 ATC 385 must be maintained. It must further be ensured

that in making reservations for the members of the Scheduled Castes and Scheduled Tribes, the maintenance of the efficiency of administration is not impaired. 72. Confirmation in cadre whether basis for classification of employees.The observations made in Patwardhan's case (AIR 1977 SC 2051) that the confirmation being one of the inglorious uncertainties of Government's Service, could not have become a reasonable basis for determination of inter se seniority may not be applicable to all contingencies and it cannot be said that the confirmation of an employee in a particular cadre cannot form a rational basis for any purpose whatsoever K. Thimmappa v Chairman, Central Board AIR 2001 SC 467. 73. Service law: Filing up vacancies in excess of notified/advertised vacancies.It is a settled legal proposition that vacancies cannot 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 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 situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law Rakhi v High Court of Delhi (2010)2 SCC 637. See also Union of India v Ishwar Singh Khatri 1992 Supp (3) SCC 84; Gujarat State Dy. Executive Engineers' Assn. v State of Gujarat 1994 Supp (2) SCC 591; State of Bihar v Secretariat Asstt. Successful Examinees Union 1986(1994)1 SCC 126; Prem Singh v Haryana SEB (1996)4 SCC 319 and Ashok Kumar v Banking Service Recruitment Board (1996)1 SCC 283. A waiting list prepared in an examination conducted by the commission does not furnish a source of recruitment Surinder Singh v State of Punjab (1997)8 SCC 488. See also Madan Lai v State of J&K( 1995)3 SCC 486; AIR 1995 SC 1088: Kamlesh Kumar Sharma v Yogesh Kumar Gupta AIR 1998 SC 1021: (1998)3 SCC 45; Sri Kant Tripathi v State of U.P. (2001)10 SCC 237; State of J & KvSanjeev Kumar (2005)4 SCC 148; StateofU.P. vRajkumar Sharma (2006)3 SCC 330 and Ram Avtar Patwari v State of Haryana AIR 2001 SC 2900: (2002)1 SCC 113. No contrary view can be discerned from the decision in Malik Mazhar Sultan (3) v U.P. Public Service Commission (2008)17 SCC 703. Also held in High Court of Judicature, Rajasthan v Veena Verma that no candidate can seek for enhancement of vacancies and to seek appointment. 77. Fairness founded on reason in service dispute.In Manager, Government Branch Press v D.B.Belliappa (1979)1 SCC 477 : AIR 1979 SC 429, a three-Judge Bench of court in relation to service dispute, may be in a different context, held that the essence of guarantee epitomized under Arts. 14 and 16 is "fairness founded on reason" (para 24). 78. Vacancies and selection process.It is settled legal proposition that vacancies over and above the number of vacancies advertised cannot be filled up. Once all the vacancies are filled up, the selection process comes to an end. In case a selected candidate after joining resigns or dies, the vacancy, so occurred cannot be filled up from the panel, which stood already exhausted. (Vide Rakhi Ray v High Court of Delhi AIR 2010 SC 932 : 2010 AIR SCW 1070. However, in the instant case, the advertisement itself made it clear that the vacancies could be increased and decreased and before completion of the selection process, a decision had been taken to fill up 42 instead of 35 vacancies and reservation policy had been implemented accordingly. 79. 'One-time measure' meaning of.The term one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in State

of Karnataka v Umadevi AIR 2006 SC 1806: 2006 AIR SCW 1991, each department or each
Art. 16] CONSTITUTION OF INDIAand prepare a list of all casual,219 instrumentality should undertake a one-time exercise daily-wage

or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.