Court No. - 34
Case :- SPECIAL APPEAL No. - 807 of 2013 Appellant :- Smt. Rekha Yadav And Another Respondent :- State Of U.P. And Another Counsel for Appellant :- Hira Lal Yadav,Prabhakar Sinha,Sunil Kumar Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J. Hon'ble Shashi Kant,J.
1. Heard learned counsel for appellants, learned Standing Counsel for respondents and perused the record.
2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 has arisen from the judgment dated 06.04.2013 passed by learned Single Judge in Writ Petition No. 13042 of 2003 - Smt. Rekha Yadav and Another Vs. State of U.P. and Others, whereby petitioners-appellants writ petition has been dismissed.
3. Matter relates to appointment on Class III posts in District Judgship, Etah. It is not disputed that 12 vacancies were advertised, where against selections were held and in select list petitioner- appellants were placed at Serial Nos. 17 and 20. Twelve persons higher in merit were given appointment. In that view of the matter, select list had exhausted. However, it appears that some leave vacancies occurred for short period and for that purpose wait list was used and appellants were given appointment on leave vacancies for short period. Such appointments do not confer any right on the appellants to continue.
4. Candidates who were placed in select list to the extent number of vacancies were advertised, having already been appointed on merit, selection stood exhausted, and persons in wait list given “short term appointment” cannot claim “substantive appointment” on the basis of aforesaid selection. Appointment given to appellants was only on “short terms vacancies” i.e. “leave vacancies” and for that purpose wait list was applied, though, select list already stood exhausted, once appointments against number of vacancies advertised were already made.
5. Admittedly, appellants are only wait list candidates and had no right to claim appointment.
6. In Union of India and Ors. Vs. Ishwar Singh Khatri and Ors 1992 Suppl. (3) SCC 84, Court held that selected candidate have right to appointment only against 'vacancies notified' and that too during the life of the select list as the panel of selected candidate cannot be valid for indefinite period. Moreover, empanelled candidates, in any event cannot have a right against future vacancies.
7. In State of Bihar and Ors. Vs. The Secretariat, Assistant S.E. Union, 1986 and Ors. AIR 1994 SC 736, Court held that "a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right to be appointed unless relevant service rules say to the contrary." In the said case as the selection process was completed in five years after the publication of the advertisement, the contention was raised that the empanelled candidates deserved to be appointed over and above the vacancies notified. The Hon'ble Apex Court rejected the contention observing that keeping the selection process pending for long and not issuing any fresh advertisement in between, may not be justified but offering the posts in such a manner would adversely prejudice the cause of those candidates who achieved eligibility in the meantime.
8. In Surinder Singh and Ors. v. State of Punjab and Ors AIR 1998 SC 18, Court held as under:
"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 persons 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 became eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as infinite stock for appointment, there is danger that the State may resort to the device of not holding the 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 perpetuating the 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 Exercise of such power has to be tested on the touch-stone of reasonableness. It is not a matter of course that the authority can fill up more posts than advertised."
9. In Kamlesh Kumar Sharma Vs. Yogesh Kumar Gupta and Ors. AIR 1998 SC 1021, Court similarly observed as under:
"As per the scheme of the Act and the aforesaid provisions, for each academic year in question, the management has to intimate the existing vacancies and vacancies likely to be caused by the end of the ensuing academic year in question. Thereafter, the Director shall notify the same to the Commission and the Commission, in turn, will invite applications by giving wide publicity in the State of such vacancies. The vacancies cannot be filled except by following the procedure as contained therein. Sub-section (1) of Section 12 has incorporated in strong words that any appointment made in contravention of the provisions of the Act shall be void. This was to ensure to back-door entry but selection only as provided under the said sections."
10. Similar view has been reiterated by Apex Court in Sri Kant Tripathi v. State of U.P. and Ors. (2001) 10 SCC 237 and State of J&K v. Sanjeev Kumar and Ors. (2005) 4 SCC 148.
11. In State of Punjab Vs. Raghbir Chand Sharma and Ors. AIR 2001 SC 2900, Court examined the case where only one post was advertised and the candidate whose name appeared at Serial No. 1 in the select list joined the post, but subsequently resigned. The Court rejected the contention that post can be filled up offering the appointment to the next candidate in the select list observing as under:
"With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select list prepared, the panel ceased to exist and has outlived its utility and at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently."
12. Referring to and relied on the above authorities, a Division Bench of this Court in District Judge and Hon'ble High Court of Judicature through its Registrar Vs. Sri Anurag Kumar 2006 (5) AWC 4682 held:
"In view of the above, we are of the considered opinion that as only ten vacancies had been advertised, there could be no justification for the authority concerned to fill up more than ten vacancies ... Once ten vacancies had been filled up, the selection process stood exhausted, and the authority concerned become functus officio. Any appointment made by him beyond that number, is without jurisdiction, therefore a nullity, inexecutable and unenforceable in law.
In such an eventuality after issuing appointment letters to ten candidates, the select list/waiting list stood exhausted and could not have been used as perennial source for appointment against any other vacancy."
13. Even otherwise, a wait list candidate has no indefeasible right to claim appointment.
14. The Apex Court in Shankarsan Dash Vs. Union of India, 1991(3) SCC 47 in para 7 said:
"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 bonafide 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 Vs. Subhash Chander Marwaha and Others, [1974] 1SCR 165; Miss Neelima Shangla Vs. Stae of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others Vs. State of Punjab and Others, [1985] 1 SCR 899."
15. In the case of U.P. Public Service Commission, Allahabad and another Vs. State of U.P. and another 2007 (5) ADJ 280 (DB) in which rights of wait list candidate was considered by this Court, in para-15 of the judgment held:
"A wait list candidate does not have any indefeasible right to get appointment merely for the reason that his name finds place in the wait list." This Court in taking the aforesaid view relied upon the decision in Ved Prakash Tripathi Vs. State of U.P., 2001(1) ESC 317 and Surinder Singh and others vs. State of Punjab and another, (1997) 8 SCC 488 and held that even a select list candidate has no indefeasible right to claim appointment.”
16. In para-31 of the judgment in U.P. Public Service Commission, Allahabad and another (supra) this Court has further held as under:
"Moreover, even in the case of a select list candidate, the law is well settled that such a candidate has no indefeasible right to claim appointment merely for the reason that his name is included in the select list as the State is under no legal duty to fill up all or any of the vacancy and it can always be left vacant or unfilled for a valid reason."
17. In view of the aforesaid law laid down in Shankarsan Dash Vs. Union of India (Supra) and U.P. Public Service Commission, Allahabad and another (supra), we are of the opinion that there is no fault in judgment of learned Single Judge dismissing petitioner- appellants writ petition, claiming continuance in leave vacancies on which they were appointed from wait list..
18. Appeal lacks merit. Dismissed.
Order Date :- 22.2.2018 A. Verma