Central Administrative Tribunal - Allahabad
Buddhi Prakash Son Of Shri C.M. Bijlwan vs T. S. Sastry Reported In Air 2004 (Sc) ... on 1 June, 2012
(Reserved on 23.05.2012)
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH
ALLAHABAD
ALLAHABAD this the 01st day of June , 2012.
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MR. SHASHI PRAKASH , MEMBER (A)
Original Application Number. 259 OF 2012.
Buddhi Prakash son of Shri C.M. Bijlwan, resident of village & Post Office Natthuwala, District Dehradoon, Uttarakhand.
Applicant.
VE R S U S
1. Union of India through the Directorate General, Archeological Survey of India, Janpath, New Delhi.
2. Superintending Archeologist, Archeological Survey of India, Agra Circle, 22, The Mall, Agra.
..Respondents
Advocate for the applicants: Shri O.P. Sharma
Advocate for the Respondents: Sri
O R D E R
Delivered by Honble Mr. Sanjeev Kaushik, J.M. By means of the present original application, the applicant seeks following direction: -
8(a). to issue a writ, order or direction to the respondents to provide the appointment to the applicant to the Group D post of Attendant in the office of respondent No. 2 antecedently since 26.05.2003 the date on which respective casual labour from the temporary status have been regularized, with all consequential benefits.
8(b). to issue any other writ order or direction which this Tribunal may deem fit and proper under the facts and circumstances of this Original Application.
2. Factual background filtering out unnecessary details is as follows:
3. The respondents department issued an advertisement on 17.11.1999 (Annexure A-5) inviting applications for filling up 7 posts of Attendant in the office of respondent No. 2 (Annexure A-5). The applicant being fully eligible applied. Out of seven vacancies, three were reserved for OBC and 4 were unreserved. The applicant was placed at Sl. No. 1 in the waiting list. All the 7 candidates in the order of merit have been given appointment and they joined.
4. Learned counsel for the applicant Shri O.P. Sharma argued that on the date when the selection was finalized, there were more than 40 vacancies were available, therefore , the candidature of those candidates, who are in waiting list like the applicant be considered against the available vacancies. Reliance is placed upon the judgment in the case of Oriental Insurance Co. Ltd. Vs. T. S. Sastry reported in AIR 2004 (SC) 795. He also placed reliance on the orders passed in O.A No. 1185/02 Harsh Mani Vs. U.O.I & Ors decided on 24.11.2004 and O.A No. 1232/06 Pradeep Kumar & Ors. Vs. U.O.I & Ors decided 27.02.2008 and argued that till the last candidate in the select list is given appointment the list cannot be said to be exhausted and person like the applicant, who was in waiting list has a right to be considered against the available vacancy till the date of issuance of advertisement. Lastly he placed reliance upon following judgments: -
a. AIR 2004 SC 1938 - Sheo Shyam & Ors. Vs. State of U.P and Ors.
b. AIR 2004 SC 1941 Ajay Kumar Poeia Vs. Shyam & Ors.
c. AIR 2004 SC 3517 - M. Subba Reddy and Anr. Vs. A.P. State Road Transport Corporation and Ors.
5. We have heard learned counsel for respective parties and perused the pleadings as well as the judgments cited by them.
6. It is fairly conceded by Shri O.P. Sharma, learned counsel for the applicant that this Tribunal has already considered the similar controversy in O.A No. 117/10 Manvendra Kumar Vs. U.O.I & Ors decided on 23.02.2012 and has rejected the claim of the applicant therein.
7. It is not disputed that only seven vacancies of Attendant were advertised and panel of seven selected candidates was issued. Admittedly all vacancies have been filed up from the candidates, who were placed in the merit list, therefore, the question left for our consideration as to whether a candidate, who is in waiting list, can be given appointment over and above the advertised post. The controversy involved in the instant case is no more res-integra. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised. 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.
8. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. The above view has also been considered by the Apex Court in the case of Union of India & Ors. v. Ishwar Singh Khatri & Ors. - (1992) Supp 3 SCC 84; Gujarat State Deputy Executive Engineers' Association v. State of Gujarat & Ors. - (1994) Supp 2 SCC 591; State of Bihar & Ors. vs. The Secretariat Assistant S.E. Union 1986 & Ors AIR 1994 SC 736; Prem Singh & Ors. v. Haryana State Electricity Board & Ors. - (1996) 4 SCC 319; and Ashok Kumar & Ors. v. Chairman, Banking Service Recruitment Board & Ors. AIR 1996 SC 976). Hence selectees cannot claim the appointment as a matter of right. Mere inclusion of candidates' name in the list does not confer any right to be selected, even if some of the vacancies remained unfilled and the concerned candidates cannot claim that they have been given a hostile discrimination. (See:Shankarsan Dash v. Union of India, (AIR 1991 SC 1612), Smt. Asha Kaul and Another v. State of Jammu & Kashmir and another (1993 (2) SCC 573), Union of India v. S.S. Uppal (AIR 1996 SC 2346), Hanman Prasad v. Union of India (1996 (10) SCC 742), Bihar Public Service Commission & Ors. v. State of Bihar & Ors. (AIR 1997 SC 2280), Syndicate Bank & Ors. v. Shankar Paul & Ors. (AIR 1997 SC 3091), Vice Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra and Ors. (1997 (10) SCC 264), Punjab State Electricity Board v. Seema (1999 SCC (L&S) 629); All India SC & ST Employees Association v. A Arthur Jeen, (AIR 2001 SC 1851), Vinodan T. v. University of Kalikut, (2002 (4) SCC 726), S. Renuka v. State of Andhra Pradesh and Ors. (AIR 2002 SC 1523), and Baitariani Gramiya Bank v. Pallab Kumar & Ors. (AIR 2000 SC 4248).
9. No doubt, a slightly different view was taken in Virender Singh Hooda v. State of Haryana and others, (1999) 3 SCC 696 (supra) but in Virender Singh Hooda and others v. State of Haryana and others, (2004) 12 SCC 588, Amendment Act with retrospective effect laying down that no candidate can claim a right to appointment beyond the number of advertised posts, was upheld, inter-alia, by noticing the stand of the State that the amendment was made to bring the situation in consonance of Articles 14. In a recent judgment the Honble supreme court in State of Orissa & Anr vs Rajkishore Nanda & Ors. - Civil Appeal No. 2808 of 2008 decided on on 3 June, 2010 held as under:-
22. The aforesaid view taken by the High Court cannot be held to be in consonance with law. More so, if the State has committed an error in preparing the merit list containing the names of candidates double the number of vacancies determined, that would not mean that select list has become immaterial and all those persons whose names appeared in the list would be offered appointment even after expiry of the life of select list.
10. It has also been held by the Apex Court in the case of Sanjoy Bhattacharjee (Supra) that only notified vacancies is to be filed up by a selected candidate and the person, who is in waiting list, has no right to appointment. The relevant observation of Honble Apex Court reads as under: -
3. .The Tribunal has dismissed the petition holding that mere putting a candidate in the select list does not confer on him any right to appointment. Selection was made only for filing up 480 vacancies; after the absorption thereof, selection has to be made for the subsequent vacancies from the open market and, therefore, directions sought could not be given. We find that the reasons given by the Tribunal are well justified. Merely because the petitioner has been put in the waiting list, he does not get any right to an appointment. It is not his case that any one below his ranking in the waiting list has been appointed which could given him cause of grievance. Thus he cannot seek any direction for his appointment.
4. For subsequent vacancies, everyone in the open market is entitled to apply for consideration of his/her claim on merit in accordance with law and it would be consistent with the provisions of Article 14 and 16(1) of the Constitution. Therefore, the direction sought for not to fill up the vacancies having arisen subsequently until the candidates in the waiting list are exhausted, cannot be granted. The Tribunal rightly refused to grant any such direction.
11. In Surinder Singh &; Ors. v. State of Punjab & Ors. AIR 1998 SC 18, Honble Supreme Court has 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 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 appointment, 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.....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." (Emphasis added)
12. Similar view has been re-iterated in Madan Lal v. State of J & K & Ors. - AIR 1995 SC 1088; Kamlesh Kumar Sharma v. Yogesh Kumar Gupta & Ors.- AIR 1998 SC 1021; Sri Kant Tripathi v. State of U.P. & Ors.- (2001) 10 SCC 237; State of J & K v. Sanjeev Kumar & Ors. - (2005) 4 SCC 148; State of U.P. v. Raj Kumar Sharma & Ors. - (2006) 3 SCC 330; and Ram Avtar Patwari & Ors. v. State of Haryana & Ors. - AIR 2007 SC 3242).
13. In State of Punjab v. Raghbir Chand Sharma & Ors. - AIR 2001 SC 2900, Honble Supreme Court has 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;
14. In Mukul Saikia & Ors. v. State of Assam & Ors. - AIR 2009 SC 747, Honble Supreme Court has 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, the appointments beyond the number of posts advertised would amount to filling up future vacancies and said course is impermissible in law.
15. In view of above, the judgments relied upon by the learned counsel for the applicant does not help the case of the applicant. It is the law of land that a candidate cannot be appointed over and above the advertised post. The law can be summarized 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, 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.
16. In view of the above, we find no illegality in the action of the respondents. Accordingly, the Original Application is dismissed being devoid of merits.
MEMBER- A MEMBER- J /Anand/ ?? ?? ?? ?? 2 O.A No. 259/2012