Madhya Pradesh High Court
Shubhra Yadav vs The State Of Madhya Pradesh on 21 September, 2023
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 21 st OF SEPTEMBER, 2023
WRIT PETITION No. 28254 of 2019
BETWEEN:-
SHUBHRA YADAV D/O SUDAMA RAM YADAV, AGED
ABOUT 34 YEARS, OCCUPATION: UNEMPLOYED R/O. 21,
BHARTIYA ESTATE PALASI KAROND ROAD BEHIND
THE HENIMAL MEDICAL COLLEGE (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI SANJAY RAM TAMRAKAR - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR THE
PRINCIPAL SECRETARY DEPT. OF TECHNICAL
EDUCATION SKILL DEVELOPMENT AND
EMPLOYMENT MANTRALAYA VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. CHAIRMAN PROFESSIONAL EXAMINATION
BOARD, BHOPAL CHAYAN BHAWAN MAINROAD
NO.-1, CHINAR PARK (EAST) (MADHYA PRADESH)
3. DIRECTOR PROFESSIONAL EXAMINATION
BOARD, BHOPAL CHAYAN BHAWAN MAINROAD
NO.-1, CHINAR PARK (EAST) (MADHYA PRADESH)
4. COMMISSIONER OFFICE OF THE DIRECTORATE
URBAN ADMINISTRATION AND DEVELOPMENT
D EPARTM EN T VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI DHEERAJ TIWARI - PANEL LAWYER FOR RESPONDENT NOS. 1
& 4 AND SHRI RAHUL DIWAKAR - ADVOCATE FOR RESPONDENT NOS.2
& 3.)
This petition coming on for admission this day, th e court passed the
Signature Not Verified
following:
Signed by: SAVITRI PATEL
Signing time: 9/25/2023
12:12:51 PM
2
ORDER
The petitioner has filed this petition under Article 226 of the Constitution of India while praying for following reliefs:-
(i) This Hon'ble Court may kindly be pleased to call for the entire record pertaining to instant subject matter for its kind perusal.
(ii) This Hon'ble Court may kindly be pleased to issue a writ in the nature of certiorari quashing the impugned order dated 24.10.2019 (Annexure P/11).
(iii) This Hon'ble Court may kindly be pleased to issue a writ in the nature of mandamus directing respondents to appoint the petitioner on the post of Sanitary Inspector.
(iv) This Hon'ble Court may kindly be pleased to issue a writ in the nature of mandamus directing respondents to decide the representation of the petitioner which is pending before them.
(v) Any other relief which this Hon'ble Court may deem fit in the facts and circumstances of the case along with cost of the petition.
2. The facts as detailed in the petition reflect that in pursuance of an advertisement dated 12.07.2016 which was issued for recruitment on the post of Group-IV category, the present petitioner possessing degree of B.Sc., M.A., B.Ed, M.Ed and Diploma course in Sanitary Inspector, applied for the same. The petitioner appeared in examination and after declaration of result as the petitioner had secured 83.73 marks, she was placed in waiting list. The candidates who had secured position in the merit list, were later on found not eligible to be appointed as they were not possessing the Diploma of Sanitary Inspector and, therefore, their names from the merit list were struck off and accordingly, the present petitioner being in the waiting list ought to have been appointed. As the respondents did not appoint the present petitioner and the representation of the petitioner submitted in terms of order passed in earlier round of litigation by this Court in W.P.No.8264/2019 (Shubhra Yadav vs. State of M.P. and Others), has been rejected on 20.08.2019, this petition has Signature Not Verified Signed by: SAVITRI PATEL Signing time: 9/25/2023 12:12:51 PM 3 been filed by the present petitioner.
3. It is contended by the counsel for the petitioner that the petitioner herein possessed the Diploma in Sanitary Inspector apart from the other degrees. One of the conditions in the advertisement was that the candidate should possess Diploma in Sanitary Inspector and accordingly, the petitioner having performed well in the examination process, was selected and was wait listed which is evident from perusal of Annexure P/5. It is further contended by the counsel that the petitioner was placed at Serial No.1610 of waiting list pertaining to Sanitary Inspector (for Municipal) and at Serial No. 1523 of Sanitary Inspector (for M.P. State Urban Sanitation Services). The petitioner was expecting that the petitioner would be given an appointment inasmuch as, all candidates those were in the merit list, were declared ineligible as they did not possess the certificate of Diploma in Sanitary Inspector and therefore, once the candidates in the merit list, were declared ineligible, the petitioner being in the waiting list ought to have been appointed. It is also contended by the counsel while taking this Court to Annexure P/13 that the candidates who were in the merit list, were declared ineligible as they were not found to be possessed with the certificate of Diploma in Sanitary Inspector.
4. It is contended by the counsel that a rejoinder has been filed along with note-sheets by the petitioner, which have direct nexus with the controversy.
It is further contended by the counsel that a perusal of the note-sheets brought on record along with rejoinder reflect that the case of the petitioner itself was taken into consideration by the Directorate, Urban Administration and Development and it was categorically reduced into writing that the candidates in the merit list could not be appointed as they were declared ineligible and accordingly, the petitioner who was possessing the certificate of Diploma in Signature Not Verified Signed by: SAVITRI PATEL Signing time: 9/25/2023 12:12:51 PM 4 Sanitary Inspector should be appointed. It is contended by the counsel that the posts were also vacant which is evident from perusal of said note-sheets contained in Annexure PR/3 (at page No.30 to 41 in the rejoinder). It is also contended by the counsel that there were vacancy which is evident from perusal of Annexure PR/5, therefore, as there was no impediment, the petitioner ought to have been given appointment in terms of the approval which finds mentioned in the note-sheets contained in Annexure PR/3 (at page No.30 to 41 in the rejoinder). Thus, counsel for the petitioner submits that the present petition deserves to be allowed. In support of his contention, counsel for the petitioner has placed reliance on the decision of Apex Court in the case of Inturi Rama Rao vs. Union of India and Another in Writ Petition (Civil) No.
(s)202/2013 dated 23.09.2014 and the decision of this Court in the case of Shailesh Kumar Sonwane vs. State of M.P. and Others in W.P.No.4792/2020 dated 09.09.2021.
5. Per contra, counsel for the respondent Nos.2 & 3 contends that the present petition filed by the petitioner deserves to be dismissed. It is contended by the counsel that the result of the examination was declared on 30.05.2017 in which the present petitioner was placed in the waiting list and the validity of the waiting list was one year and the validity having expired on 30.05.2018, the petitioner after 30.05.2018 lost every right to seek any benefit in terms of the advertisement in question. It is contended by the counsel that in identical situation where the candidates were in a merit list, which was cancelled and the candidates who were in the waiting list agitated their grievance before this Court. The Division Bench of this Court (Bench at Indore) vide order dated 26.06.2015 in W.A.No.871/2014 held that even upon cancellation of merit list, Signature Not Verified Signed by: SAVITRI PATEL Signing time: 9/25/2023 12:12:51 PM 5 on the strength of an expired waiting list, no right was accrued in favour of candidates who were wait listed.
6. Learned counsel for the respondent Nos.1 & 4 contends that the present petition is liable to be dismissed, inasmuch as, the Department of General Administration has issued a Circular dated 10.10.2016 (Annexure R/1) which pertains to the selection process which is required to be conducted by the Professional Examination Board and in the said circular it has been provided that a waiting list shall remain valid for a period of one year and the same would loose its efficacy upon expiry of one year. It is contended by the counsel that in the present case, as the petitioner was wait listed on 30.05.2017 upon declaration of result, the waiting list having expired on 30.05.2018, the petitioner was not entitled for any relief as prayed.
7. No other point is argued or pressed by both the parties.
8. Heard the rival submissions of both the parties and perused the record.
9 . A perusal of the records reflect that the petitioner having participated in the recruitment process, was declared qualified but was placed in the waiting list. The said result of the petitioner has been brought on record as Annexure P/5 which reflects that the petitioner herein was wait listed and according to the parties, the same was declared on 30.05.2017. The candidates who were in the merit list, were declared ineligible as they were not found to be possessed with the certificate of Diploma in Sanitary Inspector. The petitioner herein was seeking appointment, approached this Court by filing a petition vide W.P.No.8264/2019 (Shubhra Yadav vs. State of M.P. and Others) and this Court vide order dated 20.08.2019 directed the respondents therein to take decision on petitioner's grievance as highlighted in the representation.
Signature Not Verified Signed by: SAVITRI PATEL Signing time: 9/25/2023 12:12:51 PM 610. The representation of the petitioner has been turned down vide impugned order dated 24.10.2019 (Annexure P/11) and while rejecting the representation of the petitioner, it has been observed by the Authority that in terms of the Circular of Department of General Administration dated 10.10.2016 (Annexure R/1), the validity of waiting list of Sanitary Inspector as has been expired, therefore, no appointment from the waiting list can be made. The said reason so assigned by the respondent if examined in the light of the law laid down by the Apex Court in the case of Surinder Singh and Others vs. State of Punjab and Another reported in (1997) 8 SCC 488 the same would reveal that the decision taken by the respondent on the representation of the petitioner was proper.
11. The Apex Court in the case of Surinder Sing (supra) has held in paragraph 15 as under:-
"15.Prem Singh case [(1996) 4 SCC 319 : 1996 SCC (L&S) 934] was decided on the facts of that case and those facts do not hold good in the present case. In the case of Gujarat State Dy. Executive Engineers' Assn. [1994 Supp (2) SCC 591 : 1994 SCC (L&S) 1159 :
(1994) 28 ATC 78] this Court has explained the scope and intent of a waiting list and how it is to operate in service jurisprudence. It cannot be used as a perennial source of recruitment filling up the vacancies not advertised. The Court also did not approve the view of the High Court that since vacancies had not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed. Candidates in the waiting list have no vested right to be appointed except to the limited extent that when a candidate selected against the existing vacancy does not join for some reason and the waiting list is still operative."
12. The aforesaid paragraph reflects that enforceability of a waiting list depends upon its validity and only during that period, the candidate has a right to claim selection on the basis of inclusion of his name, in the wait list.
13. The Apex Court again in the case of Sri Kant Tripathi and Signature Not Verified Signed by: SAVITRI PATEL Signing time: 9/25/2023 12:12:51 PM 7 Others vs. State of U.P. and Others reported in (2001) 10 SCC 237 has held in paragraphs 32 and 36 as under:-
"32. The question whether a wait-listed candidate like Avinash Kumar Sharma, for the recruitment of 1990, was an issue before the Full Bench of the Allahabad High Court. The High Court did not grant the relief to the wait-listed candidate and on the other hand requested the Chief Justice of the High Court to take necessary steps for formation of a Selection Committee, so that appropriate number of candidates be interviewed for the 13 posts of direct recruitment to the Higher Judicial Service. The aforesaid request of the Full Bench tantamounts to having a fresh process of selection with the constitution of a Selection Committee under Rule 16 and necessarily, therefore, the claim of a wait-listed candidate for being appointed, stood negatived. This decision of the Full Bench has not been assailed in any higher forum and has become final. It would, therefore, be difficult for us to accept Mr Rao's contention that in view of the vacancy position, the wait-listed candidate could be appointed for the recruitment of the year 1990. A wait-listed candidate has no vested right to be appointed, except when a selected candidate does not join and the waiting list is still operative, as was held by this Court in the case of Surinder Singh v. State of Punjab [(1997) 8 SCC 488 : 1998 SCC (L&S) 65 : JT (1997) 7 SC 537] . In the case of Sanjoy Bhattacharjee v. Union of India [(1997) 4 SCC 283 : 1997 SCC (L&S) 1069] this Court considered the right of a wait-listed candidate and held that inclusion of candidates in merit list in excess of the notified vacancies, is not justified and waiting list candidates have no right to appointment. Reliance had been placed on the decision of this Court in Virender S. Hooda v. State of Haryana [(1999) 3 SCC 696 : 1999 SCC (L&S) 824] for the proposition that a wait-listed candidate could be appointed against the available vacancies. In our considered opinion, the aforesaid decision is of no application to the case in hand. In the said case, there existed two administrative circulars which in fact had been construed for conferring the right. This Court came to the conclusion that the High Court was in error in ignoring those circulars. But in the absence of any such circular or provision in the Recruitment Rules of the Higher Judicial Service, the aforesaid decision is of no assistance. Reliance had also been placed on the judgment of this Court in the case of A.P. Aggarwal v. Govt. of NCT of Delhi [(2000) 1 SCC 600 : 2000 SCC (L&S) 206] wherein the question of filling up of the vacancy of a Member of the Appellate Tribunal under the Delhi Sales Tax Act was under
consideration. This Court construed the provision of Section 13(4) of the Delhi Sales Tax Act, 1978 as well as the office memorandum dated 14-5-1987, issued by the Central Government, and on Signature Not Verified Signed by: SAVITRI PATEL Signing time: 9/25/2023 12:12:51 PM 8 construction of the aforesaid provisions, came to hold that a public duty is cast to fill up the vacancy as early as possible. We are not in a position to appreciate how this decision will be of any assistance to the wait-listed candidates. Reliance had also been placed on the decision of this Court in Roshni Devi v. State of Haryana [(1998) 8 SCC 59 : 1999 SCC (L&S) 103] whereunder this Court had observed that some margin over the advertised vacancies is permissible. That decision was given in the peculiar set of facts present there. The practice of selecting and preparing an unusually large list of candidates compared to the vacancy position, has been deprecated by this Court in no uncertain terms. But in the fact situation, the Court did permit some appointments to be made beyond the advertised vacancies, by exercising power under Article 142, as otherwise, it would have caused great injustice to many who had been appointed. We are afraid, this decision is absolutely of no application to the case in hand. Several other counsel appeared for several persons in relation to the cases concerning appointment of 1990, but they all supported the arguments advanced by Mr Rao and, therefore, we need not reiterate the same. We, however, do not find any infirmity with the order of the Division Bench of the Allahabad High Court dated 24-3-1999, which is the subject-matter of challenge in Civil Appeals Nos. 1657 and 1656 of 2001. The two writ petitions filed under Article 32 of the Constitution viz. Writ Petitions Nos. 97 of 2000 and 460 of 1999, challenging the Full Court resolution dated 11-7-1998, stand disposed of accordingly.
* * *
36. So far as the direct writ petitions filed by the wait-listed candidates are concerned in relation to the recruitment of 1992-94, at the outset, it must be stated that their case is based upon a recalculation of the number of vacancies, which can be filled up by direct recruitment by an application of the percentage provided in the quota of direct recruitment under Rule 6. Since the calculation itself had been made on an erroneous basis, as already stated, the question of a wait-listed candidate getting any right to be appointed, does not arise. That apart, the advertisement itself had been issued in the year 1996 and the challenge has been made by filing writ petitions under Article 32 in 1999. No reason has been given as to why they did not assail the advertisement for more than three years. An applicant, whose name appears in the wait list does not get an enforceable right for being appointed to a post and particularly, in a situation like the case in hand, where the determination of the number of vacancies available for recruitment as well as the respective quotas available have not been done in accordance with the Rules. That being the position, no relief can be granted to such applicants."Signature Not Verified Signed by: SAVITRI PATEL Signing time: 9/25/2023 12:12:51 PM 9
14. The Apex Court recently in the case of State of Karnataka and Others vs. Smt. Bharathi S. in Civil Appeal No.3062/2023 has held in paragraphs 12 and 13 as under:-
"12. Returning to the facts of the present case, we are of the opinion that the High Court has committed an error in assuming the existence of a right to be appointed on the basis of Entry 66 in the Schedule to the 1967 Rules. We have seen that the Rule by itself does not create any right. Such a position is also not supported by any principle of law. Finally, the conclusion of the High Court that the Respondent was unaware of the resignation of the appointed candidate will have no bearing on the operation of the Rule. The operation of the Additional List, which is to be published in the official Gazette will depend upon the time specified in the Rule and not as per the knowledge of individual candidates.
13. In conclusion, we are of the opinion that the High Court committed an error in directing the State to give effect to the Additional List and appoint the respondent within three months from the date of the order. Under these circumstances, the Civil Appeal No.3062 of 2023 filed by the State of Karnataka stands allowed and the decision of the High Court in Writ Petition No.51904 of 2019 dated 31.01.2020 is set aside."
15. Therefore, the aforesaid settled position clearly reveals that enforceability of the waiting list depends upon its validity and once the validity of waiting list is over, the same gets redundant and on the basis of same, no right can be claimed by the candidate. The judgment relied upon by the petitioner in the case of Shailesh Kumar Sonwane (supra) is of no assistance to the petitioner, inasmuch as, even in the said judgment it has been clearly held that the right, on the basis of a waiting list, can only be claimed during its validity. Simultaneously, the reliance on the decision of Inturi Rama Rao (supra) is also misconceived as the validity of waiting list was not in question in the said case.
16. Therefore, this Court does not find any merit in the present Signature Not Verified Signed by: SAVITRI PATEL Signing time: 9/25/2023 12:12:51 PM 10 petition, the same stands dismissed. No order as to costs.
(MANINDER S. BHATTI) JUDGE sp Signature Not Verified Signed by: SAVITRI PATEL Signing time: 9/25/2023 12:12:51 PM