JUDGMENT : D.N. Patel, J. I.A. No. 9819 of 2017 1. Present interlocutory application has been preferred under section 5 of the Limitation Act, 1963, for condonation of delay of 8 days in preferring this Letters Patent Appeal. 2. Having heard counsel for the both sides and looking to the reasons stated in the interlocutory application, especially in paragraph Nos. 4 to 10, it appears that there are reasonable grounds for condonation of delay. 3. In view of these facts, we hereby, condone the delay in preferring this Letters Patent Appeal. Accordingly, I.A. No. 9819 of 2017 is allowed and disposed of. 4. This Letters Patent Appeal has been preferred by the Original Respondent No.1 of W.P.(S) No. 1083 of 2017. Said writ petition was preferred by Respondent Nos. 1, 2, 3 and 4 of this Letters Patent Appeal. The writ petition was partly allowed by the learned Single Judge and hence, the Original Respondent No.1 has preferred this Letters Patent Appeal. 5. Having heard counsels appearing for both sides and looking to the facts and circumstance of the case, it appears that vide Advertisement No.s14/2015 and 15/2015, applications were invited for 14 different types of posts by the State of Jharkhand. Total number of vacancies was 1150, as submitted by the counsel for the appellants. 6. Several applications were received. Preliminary examination was conducted on 21st August, 2016 and the result was published. 7. It appears from the facts of the case that vide letter dated 18th January, 2017 (Annexure 12 to the memo of the Letters Patent Appeal), it is decided by the State of Jharkhand to withdraw the aforesaid advertisement and to publish a fresh one because of several anomalies pointed out in the said letter, which is a policy decision of the State of Jharkhand. 8. This decision, dated 18th January, 2017 (Annexure 12 to the memo of the Letters Patent Appeal), was not challenged in the writ petition preferred by Respondent No. 1,2,3 and 4. This writ petition was allowed by the learned Single Judge vide order dated 3rd November, 2017 and hence, the Original Respondent No.1 has preferred the present Letters Patent Appeal. 9. This decision, dated 18th January, 2017 (Annexure 12 to the memo of the Letters Patent Appeal), was not challenged in the writ petition preferred by Respondent No. 1,2,3 and 4. This writ petition was allowed by the learned Single Judge vide order dated 3rd November, 2017 and hence, the Original Respondent No.1 has preferred the present Letters Patent Appeal. 9. Paragraph No. 12 of the impugned judgment and order, dated 3rd November, 2017, passed in W.P.(S) No. 1083 of 2017 reads as under: “In the circumstances, this writ petition is allowed and the decision of the respondents-State to recall the requisition and cancel advertisement for Graduate Level Combined Competitive Examination, 2015, cancelling the result of the preliminary examination published in the press release dated 03.02.2017 of respondent no.1 and 04.02.2017 of respondent no.1 are hereby quashed. The respondents are further directed to conduct the Preliminary Test for the Specialised Degree Holder in view of Rule, 2017 and further to go ahead with the recruitment process by fixing the date for holding the mains examination as per Jharkhand Staff Selection Commission Examination Rule, 2015 by allowing the candidates who have already been declared successful in the earlier Preliminary Test so that uncertainty may not hamper career prospects of the petitioners who are selectees of the preliminary examination.” 10. It appears from the facts of the case that for technical and non-technical posts there was a joint advertisement. Some confusion have been created with respect to allowing candidates 15 times of the vacancies from preliminary examination to the main examination. Be that as it may, the fact remains that there is all power, jurisdiction and authority with the State of Jharkhand to publish fresh advertisement for the posts in question. There is no right vested in the candidates, those who have applied in pursuance of the public advertisement no. 14 and 15, both of the year 2015, that government must continue the selection process. Even the selected candidates have no right to be appointed. In the facts of the present case, those candidates who are Respondent Nos. 1, 2, 3, 4 in the present Letters Patent Appeal (original petitioners) have not been even selected. Hence, there is no right, whatsoever, arising in their favour. This aspect of the matter has not been properly appreciated by the learned Single Judge while allowing the writ petition, preferred by Respondent Nos. 1, 2, 3, 4 in the present Letters Patent Appeal (original petitioners) have not been even selected. Hence, there is no right, whatsoever, arising in their favour. This aspect of the matter has not been properly appreciated by the learned Single Judge while allowing the writ petition, preferred by Respondent Nos. 1,2,3 and 4 herein, viz. W.P.(S) No. 1083 of 2017 vide Judgment and order dated 3rd November, 2017. 11. It further appears from the facts of the case that the Jharkhand Staff Selection Commission Examination (Graduate Level) Conduct Rules, 2015, especially, Rule No. 7 (v), prescribes that 15 times of vacancies ought to be kept in mind for allowing the candidates from preliminary examination to the main examination. Thereafter, there is change in the Rules also, which has been brought in the year 2017. 12. We are not going into the fine niceties of the rules and the requirements of the government. It ought to be kept in mind that it is the prerogative power of the employer to give fresh advertisement for the public posts and in the facts of the present case, on 18th January, 2017 (Annexure 12 to the memo of the Letters Patent Appeal), a policy decision has been taken by the State of Jharkhand to re-advertise the vacancies. Now, there will be more vacancy. Now there will be a fresh rule of the year 2017. For technical and non-technical posts there can be separate advertisements because qualifications may be different. Suffice it to say that there is no right vested in Respondent Nos. 1, 2, 3 and 4 that they must be allowed to appear in the main examination. Decision taken by the State of Jharkhand is not for Respondent Nos. 1,2,3 and 4 only, but, also applies evenly to all candidates. 13. This aspect of the matter has not been properly appreciated by the learned Single Judge while giving direction in Paragraph No.12 of the impugned order, as stated hereinabove. Court cannot compel the Government to continue with the examination, when a policy decision is taken by the government just after the preliminary examination of taking fresh examination and for that inviting fresh application on the ground of variety of reasons, which have been stated in their policy decision dated 18th January, 2017 (Annexure 12 to the memo of the Letters Patent Appeal). 14. 14. There is no right vested even in the selected candidates to be appointed. In view of the aforesaid policy decision, even the selected candidates have no right to be appointed and Government has all power not to appoint even selected candidates. Here in the facts of the present case, the original petitioners have the worst case, because they have just appeared in preliminary examination. They were never, even selected. 15. It has been held by the Hon’ble Supreme Court in the case of Rai Shivendra Bahadur (Dr) v. Nalanda College, reported in 1962 Supp (2) SCR 144, paragraph 5 as under :- “5. A great deal of controversy was raised before us as to whether the Statutes framed by the University under Section 20 of the University of Bihar Act have or have not the force of law and whether a writ under Article 226 of the Constitution can issue against the Governing Body of the College i.e. whether the appellant has a legal right to the performance of a legal duty by the respondents. In order that mandamus may issue to compel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance. It is, however, wholly unnecessary to go into or decide this question or to decide whether the Statutes impose on the Governing Body of the College a duty which can be enforced by a writ of mandamus because assuming that the contention of the appellant is right that the College is a public body and it has to perform a public duty in the appointment of a Principal, it has not been shown that there is any right in the appellant which can be enforced by mandamus. According to the Statutes all appointments of teachers and staff have to be made by the Governing Body and no person can be appointed, removed or demoted except in accordance with Rules but the appellant has not shown that he has any right entitling him to get an order for appointment or reinstatement. Our attention has not been drawn to any article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has not that right he cannot come to court and ask for a writ to issue. Our attention has not been drawn to any article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has not that right he cannot come to court and ask for a writ to issue. It is therefore not necessary to go into any other question.” (Emphasis supplied) 16. It has been held by the Hon’ble Supreme court in the case of State of Haryana v. Subash Chander Marwaha, reported in (1974) 3 SCC 220 in paragraphs 10 and 11 as under:- “10. One fails to see how the existence of vacancies give a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. 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. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list, and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, Rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence. It must be remembered that the petition is for a mandamus. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr Rai Shivendra Bahadur v. Governing Body of the Nalanda College 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.” (Emphasis supplied) 17. It has been held by the Hon’ble Supreme court in the case of Shankarsan Dash v. Union of India reported in (1991) 3 SCC 47 in paragraphs 7 to 9 as under :- “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 State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab. 8. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab. 8. In State of Haryana v. Subhash Chander Marwaha 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55 per cent marks, were appointed, although under the relevant rules the eligibility condition required only 45 per cent marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55 per cent 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 the High Court 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 the High Court, it was observed by this Court that it was open to the government to decide how many appointments should be made and although the High Court 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 Jatendra Kumar v. State of Punjab, 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 held that the candidates 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 Neelima Shangla v. State of Haryana, was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. It is true that the claim of the petitioner in the case of Neelima Shangla v. State of Haryana, 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 the Public Service Commission which sent to the government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The government accordingly made only 17 appointments and stated before the court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the government 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 government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant. 9. Mr. Goswami 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 Rule 4 of the Indian Police Service (Cadre) Rules, 1954, Rules 3, 4, 6 and 7 of the Indian Police Service (Recruitment) Rules, 1954 and Regulations 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 Rule 4 empowers the Central Government 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 Rule 4 the method of recruitment. Rules 6 and 7 give further details in this regard. 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 Rule 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 the Central Government 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 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.” (Emphasis supplied) 18. It has been held by the Hon’ble Supreme court in the case of Punjab State Electricity Board and Others v. Malkiat Singh, reported in (2005) 9 SCC 22 as under: “4. Having considered the respective submissions made by the learned counsel for the parties, we are of the view that the High Court committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of Indi which reads: (SCC pp. 50-51) “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. 50-51) “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 State of Haryana v. Subash Chander Marwaha, Neelima Shangla v. State of Haryana or Jatinder Kumar v. State of Punjab.” (Emphasis supplied) 19. It has been held by the Hon’ble Supreme court in the case of State of Orissa v. Rajkishore Nanda, reported in (2010) 6 SCC 777 , in paragraphs 14 to 18 as under :- “14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. 15. A Constitution Bench of this Court in Shankarsan Dash v. Union of India held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of the candidate's name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. 16. Mere inclusion of the candidate's name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. 16. A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. It is the settled legal proposition that no relief can be granted to the candidate if he approaches the court after the expiry of the select list. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the court at a belated stage. 17. The instant case is required to be examined in view of the aforesaid settled legal proposition. The 1985 Rules provide for determining the number of vacancies and holding competitive examination ordinarily once in a year. The select list prepared so also is valid for one year. In the instant case, 15 vacancies were advertised with a clear stipulation that the number of vacancies may increase. The authorities had taken a decision to fill up 33 vacancies, thus, a select list of 66 persons was prepared. It is also evident from the record that some more appointments had been made over and above the 33 determined vacancies. Thus, once the selection process in respect of number of vacancies so determined came to an end, it is no more open to offer appointment to persons from the unexhausted list. 18. It is the exclusive prerogative of the employer/State Administration to initiate the selection process for filling up vacancies occurred during a particular year. There may be vacancies available but for financial constraints, the State may not be in a position to initiate the selection process for making appointments. Bona fide decision taken by the appointing authority to leave certain vacancies unfilled, even after preparing the select list cannot be assailed. The courts/tribunals have no competence to issue direction to the State to initiate selection process to fill up the vacancies. A candidate only has a right to be considered for appointment, when the vacancies are advertised and selection process commences, if he possesses the requisite eligibility.” (Emphasis supplied) 20. In the facts of the present case, Respondent Nos. The courts/tribunals have no competence to issue direction to the State to initiate selection process to fill up the vacancies. A candidate only has a right to be considered for appointment, when the vacancies are advertised and selection process commences, if he possesses the requisite eligibility.” (Emphasis supplied) 20. In the facts of the present case, Respondent Nos. 1, 2, 3 and 4 have not been even selected finally. They have appeared in the preliminary examination and cleared it. Hence, we see no reason to interfere with the policy decision of the government of 18th January, 2017 (Annexure 12 of the memo of this Letters Patent Appeal), which has not been properly appreciated by the learned Single Judge. 21. We, therefore, quash and set aside the order dated 3rd November, 2017. Passed by the learned Single Judge in W.P.(S) No. 1083 of 2017. 22. This Letters Patent Appeal is allowed. 23. It is expected from the State of Jharkhand that they will publish an advertisement as early as possible and practicable. I.A. No. 9820 of 2017 24. In the light of disposal of this Letters Patent Appeal, this Interlocutory application also stands disposed of.