Court No. - 33
Case :- WRIT - A No. - 13156 of 2017 Petitioner :- Manoj Kumar Mishra And 6 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Seemant Singh,Rishi Kant Singh Chauhan Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
This petition has been filed seeking a writ of mandamus commanding the respondent no. 3 to consider claim of petitioner nos.1 to 3 for their respective appointments in physical handicapped quota and to consider other petitioners for their appointment against 9 posts of Lekhpal, which have remained vacant due to non joining of selected candidates.
There are 7 petitioners in the writ petition, all of whom have applied for appointment on the post of Lekhpal vide advertisement issued for different districts. Advertisements of similar nature were issued by the Chairman of Selection Committee/ District Magistrate for each of the district. None of the petitioners, however, have been selected on account of their lower merit.
A counter affidavit has been filed by respondent no. 3 and in para-29 it is stated that petitioner no. 1 has secured 73.33 marks whereas cut off marks in un-reserved category is 73.73. Similarly, cut off marks in OBC category is 71.80 but the petitioner no. 2 has secured 71.73 marks and in respect of Scheduled Caste category, cut off marks is 67.73, whereas petitioner no. 3 has secured 65.93 marks. Other petitioners have applied in other districts and they admittedly have not secured marks above the cut off in their respective categories.
The writ petition has been filed with reference to a letter dated 8.9.2016, according to which number of vacancies remained unfilled in the recruitment exercise and the guidance of the State Government was sought for waiting list to be drawn for filling up of such vacancies. Learned counsel for the petitioners places reliance upon the judgment of this Court in Writ Petition No. 7494 of 2019 to submit that the vacancy ought to be filled up and in the event selected candidates have not joined then persons next in the order of merit be considered for filling up of the vacancies.
In the counter affidavit filed on behalf of the respondents, it is stated that the recruitment was undertaken in the year 2015 and none of the petitioners could secure their selection on the strength of their merit. It is also stated that there exists no provision of a waiting list. Submission is that in the event any vacancy still remained, the same shall be carried over for the next recruitment and the petitioners do not have any right to claim appointment on the said vacancy.
The Supreme Court in Shankarsan Das Vs. Union of India and others, AIR 1991 SC 1612 held that even a selected candidate gets no indefeasible right to appointment and, therefore, petitioners placed lower in merit list that the selected candidates get no right to maintain the writ petition nor any direction is required to be issued for consideration of their claim.
I have heard Sri Rishi Kant Singh Chauhan, learned counsel for the petitioners and Sri Shailendra Singh, learned Standing Counsel for the State and also perused the materials on record.
Right of selected candidate to claim appointment has been considered by the Constitution Bench of Supreme Court in Shankarsan Das (supra), wherein their Lordships have observed in para-7 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 and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899."
The Hon'ble Supreme Court has clearly observed that the Selected candidates gets no indefeasible right to claim appointment on the post and the only protection available to such a candidate is merely against any arbitrary exercise of power by the employer in discarding the claim of petitioners for appointment.
Once that be the law and has been consistently followed in subsequent judgment, the petitioner cannot claim any right of appointment only because certain vacancies remain on account of non joining by the candidates.
From the respective merits of the petitioners, as are specified in para -29 of the counter affidavit, it is quite possible that number of other persons may have secured marks above petitioners. Period of almost 6 years have otherwise expired since the declaration of result as such no direction is required to be issued for consideration of petitioners' claim for appointment.
So far as the judgment of this Court in Vatsyayan Shukla and another Vs. State of U.P. and others is concerned, petitioners, therein, had acquired equivalent marks and could not be offered appointments only because they were younger in age. It was in that context that this Court observed that the unfilled vacancies be filled up. The judgment was given in the facts of the particular case and does not lay down any proposition contrary to law laid down by Supreme Court in Shankarsan Das (supra).
For the reasons aforesaid, this Court finds no good ground to issue any direction for consideration of petitioners' claim for appointment.
Dismissed, accordingly. Order Date :- 22.9.2021 n.u.