Judgment :- 1. Whether the persons whose names are included in a select list of candidates for the post of Police Constable Operator (Telecommunication) in the Telecommunication Wing of the Police Department have an enforceable right against the State to get them appointed in the service is the question that arises in all the above writ appeals. The learned single judge held that the court cannot direct the State to appoint the persons in the select list prepared by the selection committee. Hence the above writ appeals. 2. First petitioners in O.P. Nos. 10418/87.10317/87,10490/87 and O.P. No. 10974/87 and the only petitioner in O.P. No. 212/89 are the appellants in Writ Appeal Nos. 885/88, 898/88, 901/88,1110/88 and 61/89 respectively. Petitioners are persons registered with the Employment Exchange. Pursuant to the requisition from the Superintendent of Police, Telecommunication. Trivandrum the Director of Employment, Trivandrum on 16-5-1986 sponsored names of 828 eligible persons for appointment to the post of Police Constables in the Police Telecommunication Unit. They were subjected to a written test. on 10-8-1986, physical efficiency test on 11-8-1986 and an interview on 12-8-1986. A select list was prepared containing 182 candidates and 58 candidates in the waiting list. Writ appellants were all included in the select list. All of them were informed that they have been provisionally selected as Police Constables (Telecommunication) subject to satisfaction of relevant rules and regulations and were requested to report at Police Telecommunication Headquarters, Pattom, Trivandrum on 6-9-1986 for medical examination. In the meantime it would appear that the select list was challenged in O.P. 9299/86 but the said original petition was dismissed on 9-2-1987. After dismissal of the original petition the selected candidates approached the Superintendent of Police Telecommunication for appointment. Apprehending that nobody will be appointed, the writ appellants and others filed original petitions praying for a writ of mandamus or any other writ, direction or order, directing the State of Kerala and the Superintendent of Police. respondents 1 & 2 in the original petition, to consider the appellant's names for appointment to the post of Police Constable Operators (Telecommunication) to restrain the said respondents from filling up the posts of Police Constable Operators (Telecommunication) through any other mode deviating from the select list and to declare that the petitioners are entitled to be appointed to the post of Police Constable Operators. (It has to be stated there are 5 petitioners in O.P. No. 10418/87, 15 in O.P. No. 10317/87, 42 in O.P. No. 10490/87 and 27 in O.P. No. 10974/87 and only the first petitioner in each of the O.Ps have filed writ appeals, making others as respondents in each of the respective writ appeals). 3. The fact of the preparation of valid select list has been admitted by the State. Two counter affidavits have been filed on behalf of the first respondent and in the first counter affidavit dated 5-4-1988 it is stated that "A select list of 182 candidates and a waiting list of 58 candidates were published after the written test, interview, physical efficiency test and the Medical Examination. The list contains the names of the petitioners also. The successful candidates were given specimen copies of bond to be executed in stamp paper on the day of their appointment. Specimen copies of pay certificates were also shown to them to obtain for the sureties in case they were appointed." The said counter affidavit further says that "Appointment from the select list has not been done since the anticipated vacancies did not arise. There is no attempt from this end for fresh recruitment from the Employment Exchange. Recruitment of Police Constable Telecommunication through the Kerala Public Service Commission is being examined by the Government." The recruitment was conducted to fill up the anticipated vacancy of Police Constables Telecommunication which was to arise consequent on the proposed promotion of Police Constables to the Post of Head Constables. At that time there were no test qualified Police Constables for promotion as Head Constables. The proposal did not materialise due to the stay order issued by this court in O.P.No. 5851/86 on 11-8-1986. That original petition was disposed of directing the Government to consider the representations submitted by the stagnating Police Constables. Thereafter the Government by G.O. (Rt) No. 3039/88/Home dated 17-6-1988 ordered that "Police Constables who stand denied of promotion for a long period from 1979 for want of test qualification be given provisional promotion as Head Constables subject to the specific condition that regularisation of such temporary promotion is subject to passing the prescribed promotion test. Thereafter the Government by G.O. (Rt) No. 3039/88/Home dated 17-6-1988 ordered that "Police Constables who stand denied of promotion for a long period from 1979 for want of test qualification be given provisional promotion as Head Constables subject to the specific condition that regularisation of such temporary promotion is subject to passing the prescribed promotion test. This order applies only to those Police Constables of the Police Telecommunication Unit who are eligible for promotion but for test qualification on the date of issue of this order." Thereafter promotion order was issued on 24-6-1988 promoting 208 non-test qualified Police Constables as Head Constables. After the said promotion order there is atleast 208 vacancies to be appointed from the select list. The select list has been held valid by the decision of this court in O.P. No. 9299/86. But by an additional counter affidavit dated 12-9-1988 filed on behalf of the first respondent it is stated that the first respondent has provisionally decided to bring the recruitment of Police Constables (Telecommunication) within the purview of the Kerala Public Service Commission and in the circumstances the Government considered that no regular appointment need be made to the post of Police Constable Telecommunication from the select list. It is also stated that if exigencies of service required, filling up any of the vacant post may be done by the Director General of Police purely on a provisional basis under R.9 (a) (i) of the General Rules for a period of 6 months or the Public Service Commission bands join duty whichever is earlier. 4. The learned single judge after considering the rival contentions noted the Government's decision to entrust the selection of Police Constables Telecommunication to the Public Service Commission and held that the same "is legally sustainable, procedurally fair and non-arbitrary and assures a high degree of rectitude, impartiality and fairness in the selection process." In that view of the matter the court refused to direct the State to appoint the persons in the select list prepared by a selection committee. The learned single judge made certain directions in para 6 of the judgment as under: "6. However, it has to be appreciated that petitioners and others in the select list have been entertaining hopes of appointment; they might not have sought other avenues of appointment in the meanwhile. The learned single judge made certain directions in para 6 of the judgment as under: "6. However, it has to be appreciated that petitioners and others in the select list have been entertaining hopes of appointment; they might not have sought other avenues of appointment in the meanwhile. Many of them might become overaged for select ion when the Service Commission takes up the selection. It is only fair that the persons in the select list be allowed to compete for selection by the Service Commission even if they are overaged then. The Government may also consider the question whether the persons in the select list can be appointed provisionally if provisional appointments are to be under R.9 (a) (i) of K.S. & S.S.R." With the aforesaid direction all the writ petitions were disposed of. 5. We heard counsel on behalf of the appellants and Government Pleader on behalf of the ' 1st and 2nd respondents. It is submitted on behalf of the appellants that they have a right to be appointed from the select list and that right is liable to be enforced by a writ of mandamus. Counsel referred to the decision in S. Govindaraju v. K.S.R.T.C. A.I.R.1986 S.C. 1680. In that case the appellant was selected for appointment as Conductor in the Karnataka State Road Transport Corporation and his name was placed on the select list. He was not given a regular appointment but he was appointed to work as conductor in temporary vacancy. While he was working as Conductor his services were terminated on the ground of his being found unsuitable for the post. The termination order further directed that the appellant would forfeit his chance for appointment in terms of selection and his name shall stand deleted from the select list. This order was challenged on the ground that the order of termination was void which was not found favour with the Karnataka High Court. On appeal before the Supreme Court, it was held that before the services of an employee were terminated resulting into forfeiture of his right to be considered for employment, an opportunity should have been given to the employee to explain his case. While disposing the said appeal the Supreme Court observed that "There is no dispute that the appellant's services were terminated on the ground of. While disposing the said appeal the Supreme Court observed that "There is no dispute that the appellant's services were terminated on the ground of. his being found unsuitable for the appointment and as a result of which his name was deleted from the select list, and he forfeited his chance for appointment. Once a candidate is seise ted and his name is included in the Select list for appointment in accordance with the Regulations he gets a right to be considered for appointment as and when vacancy arises. On the removal of his name from the select list serious consequences entail as he forfeits his right to employment in future. In such a situation even though the Regulations do not stipulate for affording any opportunity to the employee, the principles of natural justice would be attracted and the employee would be entitled to an opportunity of explanation, though no elaborate enquiry would be necessary." This will not be an authority for the proposition that a selected candidate gets a right to be employed which can be enforced by a writ of mandamus. All that has been stated in the case is that once a candidate is selected and his name is included in the select list for appointment, he gets a right to be considered for appointment as and when vacancy arises. It will not be an authority for the proposition that the court can issue a writ of mandamus directing the Government to appoint the candidate from the select list. 6. Counsel for the appellants referred to several other decisions viz. Krishan Chander v. Central Tractor Organisation A.I.R. 1962 S.C. 602, Sukhnandan Thakur v. State of Bihar ALR.1957 Patna 617, Jatinder Kumar v. State of Punjab 1985 (1) S.C.C. 122, A.V.V. Ratnam v. Chancellor University of Mysore 1981(2) SLR-486, Sheela Ashok Patwardhan v. Dean Dr. V.M. Medical College, Solapur A.I.R. 1989 S.C. 382, Velayudhan v. Secretary to Govt 1985 K.L.T. 793, Y.V. Rangaiah v. J. Sreenivasa Rao A.I.R. 1983 S.C. 852, but none of them is an authority for the proposition that the court can direct the State to appoint the persons in the select list prepared by the selection committee. V.M. Medical College, Solapur A.I.R. 1989 S.C. 382, Velayudhan v. Secretary to Govt 1985 K.L.T. 793, Y.V. Rangaiah v. J. Sreenivasa Rao A.I.R. 1983 S.C. 852, but none of them is an authority for the proposition that the court can direct the State to appoint the persons in the select list prepared by the selection committee. In the decision in Krishna Chander v. Central Tractor Organisation reported in A.I.R. 1962 S.C. 602 at p. 604, para 5, it is stated that "The fundamental right guaranteed by the constitution is not only to make an application for a post under the Government but the further right to be considered on merits for the post for which an application has been made. Of course, the right does not extend to being actually appointed to the post for which an application may have been made." The petitioner in that case has been deprived of his constitutional right of equality of opportunity in matters of employment and therefore it was contended that so long as the ban subsists, any application made by the petitioner for employment under the State is bound to be treated as waste-paper. It is in that context that the Supreme Court made the above observation. Their Lordships made it clear that the right under Art.16 does not extent to being actually appointed to the post. The decision in Sukhnandan Thakur v. State of Bihar and others A.I.R. 1957 Patna 617 (para. 54) was cited to emphasise that there is a distinction between the word "appointment" & "employment" used in Art.16 of the Constitution. The term "appointment" implies the concept of tenure, duration, emolument & duties and obligations fixed by law or by some rule having the force of law, which are absent in the case of public employment. But such a distinction is not however important for the purpose of the present case as here the appellants have not been appointed or employed at all. They also have no right to get appointment as such, but only right to be considered for appointment. The next case referred to is Jctinder Kumar State of Punjab 1985(1) S C. C. 122. They also have no right to get appointment as such, but only right to be considered for appointment. The next case referred to is Jctinder Kumar State of Punjab 1985(1) S C. C. 122. In that case the question whether persons selected and recommended by the Selection Board or Public Service Commission for appointment to a post have any right to be appointed came for decision and in para 12 at page 128 their Lordships observed that: "The selection by the Commission, however, is only a recommendation of the Commission and the final authority for appointment is the Government. The Government may accept the recommendation or may decline to accept the same. But if it chooses not to accept the recommendation of the Commission the Constitution enjoins the Government to place on the table of the Legislative Assembly its reasons and report for do ing so. Thus, the Government is made answerable to the House for any departure vide Art.323 of the Constitution. This, however does not clothe the appellants with any such right. They cannot claim as of right that the Government must accept the recommendation of the Commission. If. however, the vacancy is to be filled up, the Government has to make appointment strictly adhering to the order of merit as recommended by the Public Service Commission. If cannot disturb the order of merit according to its own sweet will except for other good reasons viz., bad conduct or character. The Government also cannot appoint a person whose name does not appear in the list. But it is open to the Government to decide how many appointments will be made. The process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus. We are supported in our view by the two earlier decisions of this Court in A.N.D. Silva v. Union of India and State of Haryana v. Subash Chander Marwaha. The contention of Mr. Anthony to the contrary cannot be accepted." The other decisions referred to also have not laid down any new principle. Counsel relied on the decision in A. V. V. Ratnam v. Chancellor University of Mysore 1981(2) SLR 486. The contention of Mr. Anthony to the contrary cannot be accepted." The other decisions referred to also have not laid down any new principle. Counsel relied on the decision in A. V. V. Ratnam v. Chancellor University of Mysore 1981(2) SLR 486. In that case the learned single judge, considering the provision of Karnataka State Universities Act, observed that: "S. 49(6) of the Act creates a right in favour of a candidate selected by the Board to be appointed and a corresponding duty on the part of the Chancellor to appoint a candidate selected, for the post for which the appointment was intended." The learned judge was interpreting S.49(6) of the Act which compels a Chancellor to make appointments when the list is forwarded to him. That case also has no relevancy, on the facts of this case. 7. Counsel for respondents 1 & 2 relied on several rulings to explain the position as to when a writ of mandamus will be issued. Mandamus will lie to any person who is under a duty imposed by statute or by common law to do a particular act. Of course if that person refrains from doing the act or refrains from exercising a power which is his duty to exercise, the court will by a writ of mandamus direct him to do, what he should do. The applicant must show that he has a legal right to compel the performance of the public duty. In other words he must have a legal right to insist on such performance. Only such a legally protected right could be enforced by a court of law. For this purpose counsel relied on the decisions in Mani Subrat Jain v. State of Haryana 1977 (1) S.C.C. 486, Neelima v. State of Haryana A.I.R. 1987 S.C.169, State of Kerala v. Lakshmikutty AIR. 1987 S.C. 331, Retnamma v. Public Service Commission 1977 KLT. 290, Suman Gupta v. State of J & K 1983 S.C.C. 339, the State of Haryana v. Subash Chander Marwaha & others 1973 (I) S C.W.R. 947 and an unreported judgment in Writ Appeal 19/78 of a Division Bench of this Court, wherein it is stated that no one can ask for a 'mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one, suffering a legal grievance, can ask for a mandamus. There must be a judicially enforceable right as well as a legally protected right before one, suffering a legal grievance, can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. In the decision in State of Kerala v. Lakshmikutty A.I.R. 1987 S.C 331 (para. 33) their Lordships observed that: "It is well settled that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. Applying the principles stated in Halsbury's Laws of England, 4th edn. vol. 1, para 122, this court observed that a person whose name had been recommended for appointment as a district judge by the High Court under Art.233(1) had no legal right to the post, nor was the Governor bound to act on the advice of the High Court and therefore he could not ask for a mandamus. It was observed: "It is elementary though it is to be restated that no one can ask for a mandamus without a legal right." ......... It is not necessary to refer to all the other decisions as they speak the same language. 8. Judicial audit of administrative action as to its legality is a constitutional mandate and the judicial review cannot be prevented by the plea of State necessity or State policy. When fundamental rights of citizens are invoked the court will X-ray the action of the authority. Of course the court will not strike down the policy decision taken by the Government merely because it feels that another policy decision would have been fairer or wiser or more scientific. The court will interfere only if the policy decision is void, arbitrary, discriminatory or malafide. Of course the court will not strike down the policy decision taken by the Government merely because it feels that another policy decision would have been fairer or wiser or more scientific. The court will interfere only if the policy decision is void, arbitrary, discriminatory or malafide. On a careful examination of the case, we do not feel that the action taken by the first and second respondents in entrusting the matter of appointment to the Public Service Commission in the circumstances of the case, ignoring the select list is not in any way arbitrary or improper. 9. Judicial review generally speaking, is not directed against a decision, put is directed against the decision making process (See Ranjith Thakur v. Union of India - A.I.R. 1987 S.C. 2386 Para.9). To the same effect in the decision in State of U.P. & others v. Maharaja Dharmander Prasad Singh - Judgments Today 1989(1) S.C. page 60 & 62) His Lordship held that: "Judicial review is directed, not against the decision, but is confined to the examination of the decision making process. The judicial review under Art.226 cannot be converted into an appeal." 10. In view of the fact that a large number of persons have been selected for appointment by the selection committee to fill up the anticipated vacancy as early in August 1986 and also in view of the fact that they were waiting all these years hoping for appointments we have given anxious consideration to all the facts. We also adverted to the fact that courts have asserted the power to control bodies exercising administrative function, affecting a right or interest which do not constitute a right in the strict sense. The concept of legitimate expectation is used by Lord Denning M.R. in Schmidit & another v. Secretary of State for Home affairs -1969(2) Chancery-149. It was recognised by the House of Lords in O'Reilly v. Mackman and others -1983(2) A.C. 237 and adopted by Lord Diplock in Council of Civil Service Unions & others v. Minister For The Civil Service -1935 A.C. 374. At page 408 his Lordship defined the concept as follows: "To qualify as a subject for judicial review the decision must have consequences which affect some persons (or body of persons) other than the decision- maker, although it may affect him too. At page 408 his Lordship defined the concept as follows: "To qualify as a subject for judicial review the decision must have consequences which affect some persons (or body of persons) other than the decision- maker, although it may affect him too. It must affect such other persons either: (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which either (i) be had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. (I prefer to continue to call the kind of expectation that qualifies a decision for inclusion in class (b) a "legitimate expectation" rather than a "reasonable expectation", in order thereby to indicate that it has consequences to which effect will be given in public law, whereas an expectation or hope that some benefit or advantage would continue to be enjoyed although it might well be entertained by a "reasonable" man, would not necessarily have such consequences." Even if we apply this concept to the facts of the case no direction can be given to absorb the appellants as this concept of legitimate expectation will not be available for protecting the lingering hopes of the appellants. (See New Directions In Judicial Review-Current Legal Problems). 11. In the circumstances we find no grounds to interfere with the judgment of the learned single judge and in view of the directions contained in Para.6 of the judgment under appeal which we uphold we direct that the persons who are in the select list should be allowed to compete for selection by the Public Service Commission even if they are overaged then, but we make it clear that if the Government is proposing to appoint any person, even if it be as provisional hands the same should be made only from the select list and they will continue until Public Service Commission hands join duty. Subject to the above observations all the writ appeals are dismissed.