'Non joining of selected candidate can't create right for next one': Supreme Court sets aside Karnataka HC order

New Delhi: The Supreme Court on Monday held the decision of the government to fill the notified vacancies cannot be equated with creation of a right in favour of every candidate below the selected candidate to claim automatic substitution in the event of non-joining.

A bench of Justices Vikram Nath and Sandeep Mehta set aside the Karnataka High Court's judgment of April 21, 2025 which allowed a writ petition by Santhosh Kumar C.

The respondent was selected to post of Assistant Commissioner of Commercial Taxes, Group A in 2011 recruitment by the Karnataka Public Service Commission. However, he sought appointment to the post of Assistant Commissioner, Karnataka Administrative Service, Group A, Junior Scale, since one Aiyappa M A selected to the post, did not undergo the mandatory medical examination or police verification and did not report for duty.

Considering the challenge to the HC's judgment by the Karnataka government and the KPSC, the bench said, "In the absence of such a provision, the mere fact that a selected candidate did not join cannot, by itself, create an enforceable right in favour of the respondent.''

The court noted under the Karnataka Recruitment of Gazetted Probationers (Appointment by Competitive Examinations) Rules, 1997, do not indicate that the list is to continue as an open-ended source of appointment even after the notified vacancies have been exhausted or the selection process has otherwise run its course.

The court also pointed out the first proviso to Rule 11(3) also makes it clear that inclusion in the list does not by itself result in appointment.

Appointment remains subject to such enquiry and verification as may be considered necessary and to the satisfaction of the Government regarding suitability, the court added.

"Significantly, the 1997 Rules do not provide for any reserve list, waiting list, or additional list. Nor do they contain any provision enabling the State to revert to the same list and travel further downward to fill a post left unfilled on account of non-completion of pre appointment formalities or non-joining by a selected candidate," the bench said.

"The scheme of the 1997 Rules, therefore, is of recruitment against notified vacancies through service-wise lists prepared to the extent of available vacancies, and not of continued operation of the same list beyond its statutory framework,'' the bench added.

The bench also pointed out, the respondent does not point to any provision in the 1997 Rules under which a candidate placed below a selected candidate acquires a right to be appointed to a post left unfilled on account of non completion of pre-appointment formalities or non joining.

The process was not one of a single linear progression where, upon one candidate falling out, the next candidate would necessarily step into the very same post, the bench said.

"Any such post facto adjustment would risk unsettling a service-wise and preference-based allocation exercise which had already attained finality,'' the bench said.

The court held the HC's judgment cannot be sustained, once the rules themselves defined the contours of the list and do not provide for any reserve or additional list, the absence of a selected candidate from the field cannot enlarge the statutory operation of the list.

The Department of Personnel and Administrative Reforms, Government of Karnataka rejected the request by the respondent, stating that under the 1997 Rules there was no provision for preparation of an additional select list and that a post left unfilled on account of non-reporting by a selected candidate was required to be treated as a fresh vacancy to be filled in a subsequent recruitment.

The Karnataka State Administrative Tribunal also in 2023 dismissed his application, also holding that a post not filled on account of non-reporting by a selected candidate had to be treated as a fresh vacancy.

The HC, however, held, since the selected candidate had not even undergone the mandatory medical examination, the vacancy continued to remain unfilled and should go to the candidate immediately next below.