Jharkhand High Court
Rupak Kumar Mahajan vs The State Of Jharkhand Through Its ... on 24 January, 2018
Author: D.N. Patel
Bench: Amitav K. Gupta, D.N. Patel
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.213 of 2017
Rupak Kumar Mahajan, S/o late Mahendra Lal Mahajan, R/o
Bara Bazar Subhas Marg P.O. Hazaribagh, P.S. Sadar District
Hazaribagh ..... Appellant
Versus
1. The State of Jharkhand through its Secretary,
Department of Human Resources and Development P.O.
P.S. Dhurwa District Ranchi.
2. Secretary Personnel Administrative and Rajbhasha
Department, Govt. of Jharkhand having its office at
Nepal House P.O. P.S. Doranda District Ranchi
3. Deputy Commissioner, Hazaribagh, P.O. P.S. & District
Hazaribagh.
4. Regional Dy. Director of Education North Chotanagpur
Division Hazaribagh P.O. P.S, & District Hazaribagh
..... Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant : Mr. Shresth Gautam, Advocate & Ms. Bhawna Jha, Advocate For the Respondents : Mr. Bhawesh Kumar, S.C.-II Mr. Ravi Kumar, J.C to S.C.-II
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th 04/Dated: 24 January, 2018 Oral Order Per D.N. Patel, A.C.J
1. This Letters Patent Appeal has been preferred by the original petitioner whose writ petition being W.P.(S) No.5373 of 2015 was dismissed by the learned Single Judge by judgment and order dated 16.03.2017, and hence, the original petitioner has preferred this Letters Patent Appeal. The prayer for appointment as Class - IV employee from the panel of selected candidates of the year 2005 was not operated in the year 2015, hence, the writ was preferred.
2. Factual Matrix ● An advertisement was given by the Department of Labour, Employment & Training, State of Jharkhand. The -2- advertisement no.2 of 2002 was only for Class - IV post, but no vacancy was reflected in the advertisement. It was a lump sum general advertisement without any fixed number of vacancies, for preparing a list of eligible Class - IV candidates.
● It appears that several candidates had applied, this appellant had also applied for Class - IV post and ultimately a panel of 676 selected candidates was prepared in the year 2005. Thereafter, wisdom was prevailing on the Government and vacancies were fixed.
Now, further wisdom was also prevailing on the Government and now reservation has also provided which is mentioned in the counter affidavit filed in the writ petition being W.P.(S) No.5373 of 2015, preferred by this appellant and the said reservation is as under :-
Category Total vacancy after Filled Unfilled approval of roster Vacancy Vacancy OBC 05 05 0 SC 04 04 0 ST 10 03 07 Total 19 12 07 ● The aforesaid so called reservation was only for the district Hazaribagh.
● Thus, it appears that without any specific vacancy, advertisement was issued. After selection process is over, vacancy was finalized by the Government and the reservoir has also been finalized by the Government.
Reservoir of the candidates was so large which catered the need of the Government for more than one decade -3- and still the water of the reservoir is not over. The candidates of that reservoir of the year 2005 are still coming to the Court for their appointment. One after another writ petitions are being preferred, several orders are passed by the learned Single Judges and the reservoir of the candidates was ordered to be operative in the year even after 2012 and in the year 2017, as pointed out by the counsel for the appellant. Thus, this confused scenario has continued from the year 2005 till 2017 also, and the writ preferred by the appellant and the present Letters Patent Appeal is not an exception to such type of confusion.
● This appellant is the original petitioner who is also seeking an appointment in the year 2015 from the list of the candidates prepared in the year 2005 despite, he is being of the age of 49 years approximately as on today as his date of birth is 04.09.1968 and the writ petition preferred by this appellant has been dismissed, and hence, the original petitioner has preferred the present Letters Patent Appeal.
3. The arguments canvassed by the counsel for the appellant (original petitioner) :
I. Counsel appearing for the appellant has submitted that the advertisement was issued in the year 2002 inviting applications for Class - IV post without giving any specific vacancy and this appellant was also selected and he was at Sl. No.231 in the merit list prepared in the year 2005.-4-
II. It is further submitted by the counsel for the appellant that a reservoir type of list was prepared for the years together and the respondents - Government is wise enough to appoint Class - IV employee up to the year 2015. There are several orders passed by this Court in the year 2012 and in the year 2017 also by which general lump sum select list prepared in the year 2005 is ordered to be operative and the Government is also appointing Class - IV employee from the panel of the candidates prepared in the year 2005. Further candidates are being appointed even though their age is 43, 41 and 41 years who were at Sl. Nos.233, 243 & 244 as other backward class candidates then this appellant has got a better case, because this appellant was at Sl.
No.231. This aspect of the matter has not been properly considered by the learned Single Judge, and hence, the judgment delivered by the learned Single Judge in W.P. (S) No.5373 of 2015, dated 16.03.2017, deserves to be quashed and set aside.
III. Counsel for the appellant has also relied on the decision of the Hon'ble Supreme Court reported in AIR 2013 SC 1258 (Paras - 11, 12 & 18). It is further submitted by the counsel for the appellant that under Right to Information Act, information has been gathered which is supplied by the respondents - State that the candidature of this appellant is still alive and the respondents - State can consider it at any point of time.
This aspect of the matter has not been properly -5- considered by the learned Single Judge, and hence, the judgment and order dated 16.03.2017 passed in W.P.(S) No.5373 of 2015, deserves to be quashed and set aside.
4. Arguments canvassed by the counsel for the respondents - State :
I. Counsel for the respondents - State has submitted that panel of the Class - IV employees, for which advertisement was given, prepared in the year 2005 in pursuance of the public advertisement given in the year 2002 cannot be made operative in the year 2015 or 2016 or 2017. This aspect of the matter has been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant.
II. It is also submitted by the counsel for the respondents - State that there cannot be reservoir type of list prepared in the year 2005 which can be operative for all the time to come, i.e., whole of the selected candidates are attaining the age of 60 years. Such type of list cannot be made operative and that too, after more than one decade also. In counter affidavit, the details of the other backward class candidates have also been mentioned which is reflected in paragraph no.6 of the impugned order passed by the learned Single Judge in W.P.(S) No.5373 of 2015, judgment and order dated 16.03.2017. It is also submitted by the counsel for the respondents - State that three other backward class candidates, who are at Sl. Nos.233, 243 & 244, were appointed, under the direction of this Hon'ble Court -6- passed in W.P.(S) No.4698 of 2006 and Contempt Case (Civil) No.274 of 2010 by orders dated 11.07.2007 &
05.01.2011 respectively. Thus, the list was operative only upon the order passed by this Court, otherwise as per the State of Jharkhand, list of the year 2005 cannot be made operative till it is exhausted. Even otherwise, this appellant has attained the age of approximately over 49 years, because his date of birth is 04.09.1968. Hence, no error has been committed by the learned Single Judge while dismissing the writ petition preferred by this appellant. Thus, this Letters Patent Appeal may not be entertained by this Court.
Reasons :
5. Having heard counsels for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following facts and reasons :-
I. It has become the fashion in the State of Jharkhand to give advertisement without there being any specific vacancy for the post in question. This is not permissible in the eye of law. There cannot be fluctuating vacancy in the advertisement. In the facts of the present case, nothing has been mentioned, so far as vacancy is concerned for the Class - IV employee. Such type of advertisement given by the State Government which is having no reference of vacancy at all. The Government of Jharkhand has also not pointed out that the panel of candidates, which will be prepared after the whole -7- selection process is over, will be for one year or two years or till the candidates are attaining the age of superannuation. This is also not permissible in the eye of law. The basic service jurisprudence is not known to the high ranking administrative officers of the respondents -
State of Jharkhand. There are error and over-lapping errors of the Government of Jharkhand. Such type of advertisement could not have been issued by the Government which is having no reference of total number of vacancy, nor there is a reference that the panel of the selected candidates will remain in force for one year or two years.
II. After the advertisement is given in the year 2002 for Class - IV employee, aspiring candidates applied for the post in question and after fulfilling the procedure of selection, ultimately the panel of Class - IV candidates was prepared in the year 2005. It was a panel of 676 candidates which is the part of the counter affidavit filed by the State of Jharkhand in W.P.(S) No.5373 of 2015. We hope that the aforesaid number is the last, otherwise there can be more candidates also, which is also not permissible in the eye of law, because such a long list will take away the opportunity of the fresh candidates.
III. The basic principle of service jurisprudence ought to be known by the high ranking administrative officers of the State of Jharkhand. Long list of selected candidates cannot be prepared so that the appointment from the said reservoir may continue for one decade.-8-
Vacancy ought to have been mentioned in the advertisement. Life of the select list ought to have been mentioned either in rules or in the advertisement or in same circular by the State Government without which, there will be full arbitrariness on the part of the Government to appoint the candidates towards future vacancy. The basic concept of the service jurisprudence is that future vacancy cannot be filled up from the given advertisement, hence, the vacancy ought to have been mentioned in the public advertisement. The list of selected candidates cannot remain, as reservoir, for all the time to come, till the selected candidates attained the age of 60 years. There is the grossest violation by the State of Jharkhand while giving such type of public advertisement. We therefore, direct the State of Jharkhand not to publish such type of advertisement, henceforth, which does not contain the total number of vacancy.
IV. Even if the life of the panel is not mentioned in the public advertisement, it cannot be made operative for the years together. In the facts of the present case, the panel of candidates was prepared in the year 2005 and is operated till the year 2012 and it is lastly operative in the year 2017 also. Enough is enough. Henceforth we, hereby direct the State of Jharkhand not to operate the panel of the candidates prepared in the year 2005 in pursuance of the advertisement given in the year 2002 which is at Annexure - 1 to the memo of this Letters -9- Patent Appeal. The candidates already appointed shall not be disturbed at all, unless there is a specific order of the competent Court.
V. It has been held by the Hon'ble Supreme Court in the case of Hoshiar Singh Vs. State of Haryana, reported in 1993 Supp (4) SCC 377, in paragraph no.10, which reads as under :
"10. The learned counsel for these appellants have not been able to show that after the revised requisition dated January 24, 1991 whereby the Board was requested to send its recommendation for 8 posts, any further requisition was sent by the Director General of Police for a larger number of posts. Since the requisition was for eight posts of Inspector of Police, the Board was required to send its recommendations for eight posts only. The Board, on its own, could not recommend names of 19 persons for appointment even though the requisition was for eight posts only because the selection and recommendation of larger number of persons than the posts for which requisition is sent. The appointment on the additional posts on the basis of such selection and recommendation would deprive candidates who were not eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts because if the said additional posts are advertised subsequently those who become eligible for appointment would be entitled to apply for the same. The High Court was, therefore, right in holding that the selection of 19 persons by the Board even though the requisition was for 8 posts only, was not legally sustainable."
(Emphasis supplied) VI. It has been held by the Hon'ble Supreme Court in the case of Gujarat State Dy. Executive Engineers' Assn. Vs. State of Gujarat, reported in 1994 Supp (2) SCC 591, in paragraph nos.9 & 10, which read as under :
"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
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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.
10. How a waiting list is to operate in the State is clear from a circular issued by the State Government on 27-12- 1983. The relevant portion of the circular is extracted below:
"According to the instructions issued by the department often and often, waiting list prepared by the Gujarat Public Service Commission over and above the number of posts requisitioned shall remain in force up to 2 years or under circumstances up to the declaration of the result of next examination. The basic purpose of the preparation of waiting list is when sufficient candidates are not available from the merit list prepared for requisition of particular year, shortfall can be met with from waiting list or for making recruitment during emergent condition, waiting list cannot be considered as merit list for that year or of next year, similarly waiting list cannot be used as a substitute to the requisition of next year. Further as the requisition statement for the particular year is sent for the post allocable to direct recruitment for that year as per provision in relevant rules, naturally the requirement of subsequent year cannot be incorporated. Considering on the above facts it is not fair to stop the regular procedure of recruitment or not to give new advertisement for the reason that merit list or waiting list prepared as part of merit list of previous year is in force."
Although the circular was issued in 1983 but it only attempted to clarify what was the implied purpose of a waiting list. Even without it, the operation of a waiting list should be confined to the vacancies notified for that examination and not for any vacancy arising in future unless a policy decision is taken by the Government to that effect. Appointment in future vacancies from waiting list prepared by the Commission should be exception rather than the rule. It has many ramifications. In any case, the High Court should not have assumed upon itself the role of appointing authority unless it found that the Government was acting arbitrarily. No rule has been shown that selection of direct recruits was to take place every year. In absence of such rule, the proviso could not apply. However, its validity was not challenged either in the High Court or in this Court. It has, therefore, to be construed so as not to defeat the objective of its
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enactment. For its working reasonably it has to be understood that once recruitment by direct selection has been made in any year then the quota of direct recruits till then should be deemed to have been exhausted and if any vacancy could not be filled for any reason then it should be deemed to have lapsed and could not be carried forward. Read in this manner the quota of direct recruits till 1980 got exhausted. But it could not affect quota of 1981-82 and 1982-83, therefore, no appointments on the quota of direct recruits for 1981-82 and 1982-83 could be made from the waiting list of 1980. The entire exercise undertaken by the High Court of finding out number of vacancies was thus an exercise in futility. Further, what the High Court has done is that it has not worked out the vacancies only till the examinations were held but it went further to hold that since the result of the next examination was declared in 1983 the vacancies for direct recruits arising between the date the result of 1980 examination was declared and before the result of 1982 was declared could be filled from the waiting list of 1980. In other words, the waiting list instead of being a list for filling the vacancy in exigencies arising out of non-joining of a candidate for the year for which the examination was held became a source of recruitment for the vacancies which were to arise between 1980 and 1983. And if the vacancies which arose in 1981-82 and 1982-83 are filled by this method then the examination of 1982 was held for which vacancy as normally the Government sends the requisition for the vacancies existing on the date of sending the requisition. We can appreciate the anxiety of the High Court that if examinations are not held regularly as has happened between 1983 to 1993 it may result in depriving fresh candidates from being selected and their post may be filled by promotees. But such concern could not result in nullifying entire procedure. The better course would have been to direct the Government to work out the vacancies and fill them by holding an examination, if necessary, in addition to the examination already held. But the procedure adopted by the High Court, of giving such vacancies to candidates who were in the waiting list does not appear to be correct. There was no contingency nor the State Government had taken any decision to fill the vacancies from the waiting list as it was not possible for it to hold the examination nor any emergent situation had arisen except the claim of some of the candidates from the waiting list that they should be given appointment for vacancies which arose between 1980 and 1983 and between 1983 and 1993. Such claim of the appellants who had appeared in a particular examination and were placed in the waiting list could not be sustained. In fact, the action of the State Government in not sending the requisition every year or at the most every second year to the Commission for holding an examination for vacancies which had arisen or were likely to arise was liable to be commented upon and the State Government should have been directed to take care in future that the examinations are held regularly. But in no case the vacancies arising in future should have been offered to the candidates in the waiting list of the earlier year. The direction of the High Court, therefore, to appoint the candidates from the waiting list in the vacancies which, according to its calculation, arose between the years 1980 to 1983 and between 1983 to 1993 cannot be upheld."
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(Emphasis supplied) VII. It has been held by the Hon'ble Supreme Court in the case of Madan Lal Vs. State of J & K, reported in (1995) 3 SCC 486, in paragraph nos.23, 24 & 27, which read as under :
"23. It is no doubt true that even if requisition is made by the Government for 11 posts the Public Service Commission may send merit list of suitable candidates which may exceed 11. That by itself may not be bad but at the time of giving actual appointments the merit list has to be so operated that only 11 vacancies are filled up, because the requisition being for 11 vacancies, the consequent advertisement and recruitment could also be for 11 vacancies and no more. It is easy to visualise that if requisition is for 11 vacancies and that results in the initiation of recruitment process by way of advertisement, whether the advertisement mentions filling up of 11 vacancies or not, the prospective candidates can easily find out from the Office of the Commission that the requisition for the proposed recruitment is for filling up 11 vacancies. In such a case a given candidate may not like to compete for diverse reasons but if requisition is for larger number of vacancies for which recruitment is initiated, he may like to compete. Consequently the actual appointments to the posts have to be confined to the posts for recruitment to which requisition is sent by the Government. In such an eventuality, candidates in excess of 11 who are lower in the merit list of candidates can only be treated as wait-listed candidates in order of merit to fill only the 11 vacancies for which recruitment has been made, in the event of any higher candidate not being available to fill the 11 vacancies, for any reason. Once the 11 vacancies are filled by candidates taken in order of merit from the select list that list will get exhausted, having served its purpose.
24. It is now time to refer to Rule 41 as pointed out by the learned counsel for the petitioners. The said rule reads as under:
"Security of the list.-- The list and the waiting list of the selected candidates shall remain in operation for a period of one year from the date of its publication in the Government Gazette or till it is exhausted by appointment of the candidates whichever is earlier, provided that nothing in this rule shall apply to the list and the waiting list prepared as a result of the examination held in 1981 which will remain in operation till the list or the waiting list is exhausted."
A mere look at the rule shows that pursuant to the requisition to be forwarded by the Government to the Commission for initiating the recruitment process, if the Commission has prepared the merit list and the waiting list of selected candidates such list will have a life of one year from the date of publication in Government Gazette or till it is exhausted by the appointment of candidates, whichever is earlier. This means that if requisition is for
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filling up of 11 vacancies and it does not include any anticipated vacancies, the recruitment to be initiated by the Commission could be for selecting 11 suitable candidates. The Commission may by abundant caution prepare a merit list of 20 or even 30 candidates as per their inter se ranking on merit. But such a merit list will have a maximum life of one year from the date of publication or till all the required appointments are made whichever event happened earlier. It means that if requisition for recruitment is for 11 vacancies and the merit list prepared is for 20 candidates, the moment 11 vacancies are filled in from the merit list the list gets exhausted, or if during the span of one year from the date of publication of such list all the 11 vacancies are not filled in, the moment the year is over the list gets exhausted. In either event, thereafter, if further vacancies are to be filled in or remaining vacancies are to be filled in, after one year, a fresh process of recruitment is to be initiated giving a fresh opportunity to all the open market candidates to compete. This is the thrust of Rule 41. It is in consonance with the settled legal position as we will presently see. We cannot agree with the learned counsel for respondents that during the period of one year even if all the 11 vacancies are filled in for which requisition is initiated by the State in the present case and if some more vacancies arise during one year, the present list can still be operated upon because the Commission has sent the list of 20 selected candidates. As discussed above, the candidates standing at Serial Nos. 12 to 20 in the list can be considered only in case within one year of its publication, all the 11 vacancies do not get filled up for any reason. In such a case only this additional list of selected candidates would serve as a reservoir from which meritorious suitable candidates can be drawn in order of merit to fill up the remaining requisitioned and advertised vacancies, out of the total 11 vacancies. If that cannot be done for any reason within one year of the publication of the list, even this reservoir will dry up and the entire list will get exhausted. We asked learned counsel for respondent-State to point out whether after the letter at page 87, there was any further communication by the State to the Commission to initiate the process for recruitment to additional anticipated vacancies. He fairly stated that no further request was sent. That letter at page 87 is the only material for this purpose since that is the basis for the recruitment made by the Commission in the present case. In this connection, we may usefully refer to a decision of this Court in the case of State of Bihar v. Madan Mohan Singh. In that case appointments to the posts of Additional District and Sessions Judges were being questioned. The question was whether appointments could be made to more than 32 posts when the selection process was initiated for filling up 32 vacancies and whether the merit list of larger number of candidates would remain in operation after 32 vacancies were filled in. Negativing the contention that such merit list for larger number of candidates could remain in operation after 32 advertised vacancies were filled in, K. Jayachandra Reddy, J. made the following pertinent observations: (AIR headnote) "Where the particular advertisement and the consequent selection process were meant only to fill up 32 vacancies and not to fill up the other
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vacancies, the merit list of 129 candidates prepared in the ratio of 1 : 4 on the basis of the written test as well as viva voce will hold good only for the purpose of filling up those 32 vacancies and no further because said process of selection for those 32 vacancies got exhausted and came to an end. If the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and selection process."
27. In the present case as the requisition is for 11 posts and even though the Commission might have sent list of 20 selected candidates, appointments to be effected out of the said list would be on 11 posts and not beyond 11 posts, as discussed by us earlier. This contention will stand accepted to the extent indicated hereinabove."
(Emphasis supplied) VIII. It has been held by the Hon'ble Supreme Court in the case of Union of India Vs. B. Valluvan, reported in (2006) 8 SCC 686, in paragraph nos.10 & 17, which read as under :
"10. Recruitment process, as is well known, must be commensurate with the statute or the statutory rule operating in the field. We have noticed hereinbefore, advertisement was made for three posts. It was not indicated therein that another panel for filling up of the future vacancies was to be prepared by the Selection Committee. In the select list prepared by the Selection Committee, the name of the 1st respondent was at Sl. No.
4. Recommendations were made containing the names of 19 persons for future vacancies. Only because a panel has been prepared by the Selection Committee, the same by itself, in our opinion, would not mean that the same should be given effect to irrespective of the fact that there was no such rule operating in the field. The Selection Committee was bound to comply with the selection process only in terms of the extant rules. It was bound to follow the stipulations made in the advertisement itself. Even in the advertisement it was not indicated that a select list would be prepared for filling up of future vacancies. The Selection Committee, having been appointed only for recommending the names of suitable candidates, who were fit to be appointed, could not have embarked upon the question as regards likelihood of future vacancy.
17. The life of a panel ordinarily is one year. The same can be extended only by the State and that too if the statutory rule permits it to do so. The High Court ordinarily would not extend the life of a panel. Once a panel stands exhausted upon filling up of all the posts, the question of enforcing a future panel would not arise. It was for the State to accept the said recommendations of the Selection Committee or reject the same. As has been noticed
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hereinbefore, all notified vacancies as also the vacancy which arose in 2000 had also been filled up. As the future vacancy had already been filled up in the year 2000, the question of referring back to the panel prepared in the year 1999 did not arise. The impugned judgment, therefore, cannot be sustained.
(Emphasis supplied) IX. It has been held by the Hon'ble Supreme Court in the case of Mukul Saikia Vs. State of Assam, reported in (2009) 1 SCC 386, in paragraph no.33, which reads as under :
"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.
(Emphasis supplied) X. It has been held by the Hon'ble Supreme Court in the case of Rakhi Ray Vs. High Court of Delhi, reported in (2010) 2 SCC 637, in paragraph nos.7, 11, 12 & 24, which read as under :
"7. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power
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and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law. (Vide Union of India v. Ishwar Singh Khatri, Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat, State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986, Prem Singh v. Haryana SEB and Ashok Kumar v. Banking Service Recruitment Board.)
11. In Mukul Saikia v. State of Assam this Court dealt with a similar issue and held that "if the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised." 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 "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" and said course is impermissible in law. (SCC p. 394, para 33)
12. In view of above, the law can be summarised to the effect that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India, thus, a nullity, inexecutable and unenforceable in law. In case the vacancies notified stand filled up, the process of selection comes to an end. Waiting list, etc. cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification/advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service any more.
24. 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. In the instant case, once 13 notified vacancies were filled up, the selection process came to an end, thus there could be no scope of any further appointment.
(Emphasis supplied) XI. It has been held by the Hon'ble Supreme Court in the case of State of Orissa Vs. Rajkishore Nanda, reported in (2010) 6 SCC 777, in paragraph nos.11, 12, 13, 14, 15, 16, 17 & 18, which read as under :
"11. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies
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advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. (Vide State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986, Prem Singh v. Haryana SEB, Ashok Kumar v. Banking Service Recruitment Board, Surinder Singh v. State of Punjab and Rakhi Ray v. High Court of Delhi.)
12. In State of Punjab v. Raghbir Chand Sharma this 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 the post can be filled up offering the appointment to the next candidate in the select list observing as under: (SCC p. 115, para 4) "4. ... With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel 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."
13. In Mukul Saikia v. State of Assam this Court dealt with a similar issue and held that "if the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised". 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.
"currency of select list had expired as soon as the number of posts advertised were filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies"
and the said course is impermissible in law.
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.
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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. (See also Asha Kaul v. State of J&K, Union of India v. S.S. Uppal, Bihar Public Service Commission v. State of Bihar, Simanchal Panda v. State of Orissa, Punjab SEB v. Malkiat Singh, Union of India v. Kali Dass Batish, Divisional Forest Officer v. M. Ramalinga Reddy, Subha B. Nair v. State of Kerala, Mukul Saikia v. State of Assam and S.S. Balu v. State of Kerala.)
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. (Vide J. Ashok Kumar v. State of A.P., State of Bihar v. Mohd. Kalimuddin, State of U.P. v. Harish Chandra, Sushma Suri v. Govt. of NCT of Delhi, State of U.P. v. Ram Swarup Saroj, K. Thulaseedharan v. Kerala State Public Service Commission, Deepa Keyes v. Kerala SEB and Subha B. Nair.)
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) XII. It has been held by the Hon'ble Supreme Court in
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the case of Arup Das Vs. State of Assam, reported in (2012) 5 SCC 559, in paragraph no.17, which read as under :
"17. It is well established that an authority cannot make any selection/appointment beyond the number of posts advertised, even if there were a larger number of posts available than those advertised. The principle behind the said decision is that if that was allowed to be done, such action would be entirely arbitrary and violative of Articles 14 and 16 of the Constitution, since other candidates who had chosen not to apply for the vacant posts which were being sought to be filled, could have also applied if they had known that the other vacancies would also be under consideration for being filled up."
(Emphasis supplied) XIII. In view of the aforesaid decisions rendered by the Hon'ble Supreme Court, future vacancy cannot be filled up in pursuance of the advertisement given in the year 2002. Hence, vacancy in the advertisement ought to have been mentioned by the State of Jharkhand. Panel of the candidates cannot be operated as reservoir so that the water can be fetched from the said reservoir looking to the future need of the Government of Jharkhand. This takes away the right of the fresh candidates for getting public employment. If this is allowed, perhaps the State of Jharkhand will be preparing a panel of 1000 candidates for approximately two decades or more.
Thus, the right of the fresh candidates will be taken away. No advertisement will come for Class - IV employees for at least two decades, if this type of phenomenon is continued by this Court. We deprecate this practice adopted by the State of Jharkhand. It is now high time for the high ranking administrative officers of the State Government to have orientation course and thereafter advance course for learning service
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jurisprudence which is based upon the several decisions rendered by the Hon'ble Supreme Court.
XIV. It is argued by the counsel for the appellant that the date of birth of this appellant (original petitioner) is 04.09.1968, and hence, his age as on today is approximately 49 years. For this reason also, this appellant cannot be appointed as Class - IV employee even though there is a vacancy with the Government from the so called list of the year 2005.
XV. Much has been argued out that three other backward class candidates at Sl. Nos.233, 243 & 244 were appointed in the year 2012 by the orders of learned Single Judges of this Court, though these candidates were of the age of 43 years, 41 years and 41 years respectively. This contention is not accepted by this Court for appointment of this appellant mainly for the reason that as stated here-in-above enough is enough.
Now this list of the year 2005 shall not be made operative. Thus, the candidates who have already been appointed shall not be disturbed except by the order of the Court. There are several over lapping error committed by the State of Jharkhand - firstly, by giving advertisement without any specific vacancy and secondly, list prepared in the year 2005 was of more than 600 candidates, which is operated up to year 2017.
Even though the candidates are of more than forty plus age. Such type of candidates ought not to have been appointed by the State of Jharkhand. We, therefore,
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direct the State of Jharkhand :-
(a) The State of Jharkhand shall not operate the panel of candidates prepared in the year 2005 in pursuance of the public advertisement No.02 of 2002, except by the order of the Court.
(b) Already appointed candidates shall not be disturbed, in pursuance of the public advertisement No.02 of 2002, except by the order of the Court.
(c) The State of Jharkhand shall not give any public advertisement for any post without there being specifically mentioning the number of vacancies.
(d) The State of Jharkhand is also directed to point out that the panel of selected candidates will be operated up to what period.
XVI. In the facts of the present case, even though, in a public advertisement No.02 of 2002 nothing is mentioned about the life of the selected candidates, we, hereby, direct the State of Jharkhand not to operate the said panel prepared in the year 2005 henceforth. The future vacancies cannot be filled up from one list of the selected candidates, otherwise it will take away the valuable right to get appointment on the public post. It appears that advertisement given for Class - IV employees without vacancy reflects a lot of confusion in the mind of the Government specially about the service jurisprudence. Such confusion is further fortified by operating the panel of the selected candidates prepared
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in the year 2005 up to the year 2017. These confused minded persons ought to be trained by the State of Jharkhand by organizing a orientation course and thereafter advance course on service jurisprudence.
6. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, we see no reason to take any other view than what has been taken by the learned Single Judge while dismissing the writ petition being W.P.(S) No.5373 of 2015 vide judgment and order dated 16.03.2017.
7. Hence, there is no substance in this Letters Patent Appeal and the same is, hereby, dismissed.
8. Registry of this Court is directed to send the copy of the order initially through FAX and thereafter by registered post with A/D to :-
(i) the Chief Secretary, Government of
Jharkhand;
(ii) the Principle Secretary, Finance Department, Government of Jharkhand, Secretary, Department of Human Resources and Development, Government of Jharkhand, and
(iii) the Secretary, Personnel Administrative & Rajbhasha Department, Government of Jharkhand, for needful.
(D. N. Patel, A.C.J) (Amitav K. Gupta, J) Dey - Chandan/-