Court No. - 34
Case :- WRIT - A No. - 34709 of 2003 Petitioner :- Kalyan Saini Respondent :- District Judge Mahoba District Mahoba And Others Counsel for Petitioner :- K.M. Mishra,K.S. Rathore,Pawnesh Tiwari,Pramila Tiwari,R. Chaturvedi,Rajesh Kumar Dubey,Rajneesh Baranwal,R0357 Counsel for Respondent :- C.S.C.,K.R. Sirohi,Manish Goel,Sanjay Singh,Sudhir Agarwal,Yogesh Agarwal
Hon'ble Yashwant Varma,J.
Heard the learned counsel for the petitioner, Sri Sanjay Singh, learned counsel appearing for respondent No.3 and Ms. Pooja Agarwal, learned counsel appearing for respondent Nos.1 and 2.
Although the writ petition has challenged the appointment of respondent No.3, learned counsel for the petitioner chooses not to press that relief and submits that the petition may be confined to the consideration of relief (v) which has been included pursuant to the amendment application being allowed. That relief seeks the issuance of a writ of mandamus commanding the respondents to appoint the petitioner as a Class-IV employee pursuant to his inclusion in a list which was prepared by the respondent in 2000.
Learned counsel for the petitioner initially contended that the list which stands appended as Annexure-5, was a merit list in which the petitioner was shown as higher than the third respondent. However, subsequently the tenor of submission was changed and it was then contended that the aforesaid constitutes a waiting list. In support of his submission that the relief as claimed is liable to be granted, learned counsel places reliance upon a decision of the Supreme Court in Naseem Ahmad and others vs. State of U.P. and others [2011(2) SCC 734] and more particularly paragraph Nos.20 and 21 of the report which read thus: -
"20. About the validity of wait list and the claim of the respondents that it is valid only for one year, we have already pointed out that the relevant rule applicable is Rule 12 which admittedly does not prescribe any such limitation. Even though the High Court has adverted to clarification said to have been issued by the Government, the fact remains, the statutory rule i.e. Rule 12 as it existed on the relevant date did not provide any time-
limit in regard to the operation of the waiting list. In such circumstances, the claim of the official respondents that a waiting list of candidates contemplated under Rule 12 cannot be deemed to be subsisting for a period beyond the filling up of the notified vacancies for the filling whereof the list has to be prepared and maintained is not supported by any statutory rule and liable to be rejected. It is true that it cannot be deemed to be operative for an indefinite period. We have already pointed out that even if we accept that the life of the wait list is only for one year, inasmuch as these appellants were appointed by the order dated 13-8-2001, within one year of their selection by the select list dated 19-9- 2000, the stand of the respondents is to be rejected and the service of the appellants has to be treated as regular service and no adverse order can be passed against them.
21. As discussed above, the construction of Rule 12 as per interpretation of the statute would be that its life is not limited for a particular year since the Rule is very specific and unambiguous. Wait list gets exhausted only when all duly selected candidates are given appointments in the light of Rule 12. As long as the wait list was not exhausted, a fresh list could not be prepared under Rule 12 and the process initiated by the respondents for advertising fresh posts and cancelling the wait list by making it as ad hoc is against the provisions of the Rules."
On the basis of the aforesaid, learned counsel contends that the list, which was drawn in 2000, must be recognised as subsisting even though a period of 21 years may have expired and that would justify this Court issuing a prerogative writ commanding the respondents to appoint the petitioner.
The submission is not only wholly misconceived but also clearly fallacious. As per the own case of the petitioner the document which is relied upon is not a waiting list since the entire writ petition proceeds on the basis that it was a list showing the names of all applicants who had participated in the selection process and arranged in accordance with their individual merit position. In fact the entire challenge to the appointment of the third respondent was based on the assertion that the petitioner stood at a higher position in merit over respondent No.3.
More importantly the Court notes that the writ petition nowhere asserts that the notified vacancies did not stand filled up by appointment of those whose names found mention in that list.
The decision in Naseem Ahmad has clearly neither been understood nor appreciated by learned counsel. In Naseem Ahmad the Supreme Court proceeded on the basis of the admitted position that Rule 12 of the U.P. Subordinate Civil Court Inferior Establishment Rules, 1995 at the relevant time did not prescribe any time limit. The Supreme Court further proceeded to note that although the High Court had taken into consideration certain subsequent clarifications issued by the Government, in the absence of a specific and statutorily engrafted time limit circumscribing the waiting list, it would be liable to be treated as continuing to remain in force till such time as all notified vacancies are filled. However and significantly, the Supreme Court also pertinently observed that in any case the list as prepared under Rule 12 cannot be deemed to be operative for an “indefinite period”. As noted above the petitioner seeks the issuance of a prerogative writ based on his inclusion in a select list prepared two decades ago.
Post the decision in Naseem Ahmad, the Supreme Court in Raj Rishi Mehra v. State of Punjab, [(2013) 12 SCC 243] held as follows: -
15. The question whether the candidates whose names are included in the waiting list are entitled to be appointed against the unfilled posts as of right is no longer res integra and must be answered in negative in view of the judgments of this Court in Union of India v. Ishwar Singh Khatri [1992 Supp (3) SCC 84 : 1992 SCC (L&S) 999 : (1992) 21 ATC 851] , Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat [Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat, 1994 Supp (2) SCC 591 : 1994 SCC (L&S) 1159 : (1994) 28 ATC 78] , State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986 [(1994) 1 SCC 126 : 1994 SCC (L&S) 274 : (1994) 26 ATC 500] , Prem Singh v. Haryana SEB [(1996) 4 SCC 319 : 1996 SCC (L&S) 934] , Ashok Kumar v. Banking Service Recruitment Board [(1996) 1 SCC 283 : 1996 SCC (L&S) 298 : (1996) 32 ATC 235] , Surinder Singh v. State of Punjab [(1997) 8 SCC 488 : 1998 SCC (L&S) 65] , Madan Lal v. State of J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712 :
(1995) 29 ATC 603] , Kamlesh Kumar Sharma v. Yogesh Kumar Gupta [(1998) 3 SCC 45 : 1998 SCC (L&S) 720] , State of J&K v. Sanjeev Kumar [(2005) 4 SCC 148 : 2005 SCC (L&S) 447] , State of U.P. v. Rajkumar Sharma [(2006) 3 SCC 330 : 2006 SCC (L&S) 565] , Ram Avtar Patwari v. State of Haryana [(2007) 10 SCC 94 : (2008) 1 SCC (L&S) 15] and Rakhi Ray v. High Court of Delhi [Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637 : (2010) 1 SCC (L&S) 652].
16. In Surinder Singh case [(1997) 8 SCC 488 : 1998 SCC (L&S) 65] this Court observed as under: (SCC p. 494, para 14) “14. … ‘9. A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.’ (Gujarat State Dy. Executive Engineers' Assn. case [Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat, 1994 Supp (2) SCC 591 : 1994 SCC (L&S) 1159 : (1994) 28 ATC 78] , SCC p. 599, para 9)”
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19. In Mukul Saikia v. State of Assam [(2009) 1 SCC 386 : (2009) 1 SCC (L&S) 186] this Court held that once the appointments are made against the advertised posts, the select list gets exhausted and those who are placed below the last appointee cannot claim appointment against the posts which subsequently become available. Para 33 of the judgment which contains discussion on this issue is reproduced below: (SCC pp. 394-95, para 33) “33. At the outset it should be noticed that the select list prepared by APSC could be used to fill the notified vacancies and not future vacancies. If the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised, even though APSC had prepared a select list of 64 candidates. The select list got exhausted when all the 27 posts were filled. Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The fact that evidently and admittedly the names of the appellants appeared in the select list dated 17-7-2000 below the persons who have been appointed on merit against the said 27 vacancies, and as such they could not have been appointed in excess of the number of posts advertised as the currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies meant for direct candidates in violation of quota rules. Therefore, the appellants are not entitled to claim any relief for themselves. The question that remains for consideration is whether there is any ground for challenging the regularisation of the private respondents.”
The principles enunciated in the aforesaid decisions have been consistently followed in subsequent decisions of the Supreme Court.
Accordingly, and for the aforesaid reasons, the writ petition fails and shall stand dismissed.
Order Date :- 29.9.2021 Rakesh