Allahabad High Court
Ashok Kumar Tripathi S/O Sri Daya Ram ... vs Union Of India (Uoi) Through Secretary, ... on 18 May, 2007
Bench: Anjani Kumar, Sudhir Agarwal
JUDGMENT
Anjani Kumar and Sudhir Agarwal, JJ.
1. The petitioner Ashok Kumar Tripathi aggrieved by the orders dated 9.11.2004 passed by The Central Administrative Tribunal dismissing his O.A. No. 10 of 1999, and dated 5.1.2007 rejecting his review petition has filed this writ petition under Article 226 of the Constitution of India.
2. The relevant facts giving rise to the present dispute are that in September 1993 Kendriya Vidalaya Sanghtan, Lucknow (hereinafter referred to as KVS) advertised 32 posts of Lower Divisional Clerk and 18 posts of Upper Divisional Clerk. The petitioner applied and appeared in written examination held in September 1994 and typing test held on 13.11.1994. A panel of 35 candidates was declared in May 1995 which included 27 general, 5 scheduled caste (hereinafter referred as S.C.) and 3 other backward classes (herein referred as OBC) category candidates. The name of the petitioner was at serial No. 25 in the list of general category candidates. Respondents issued appointment letters to 21 candidates which included 14 general, 3 OBC and 4 SC candidates. In the year 1996, 3 more candidates from the said panel were appointed which included 2 general and 1 S. C. candidate. Since there still existed vacancies but no more appointments were being made the petitioner filed O. A. No. 1490 of 1999 and after exchange of pleadings, the Tribunal dismissed application on 9.11.2004 holding that mere selection does not confer any right on the petitioner to claim appointment. The petitioner filed a review application No. 109 of 2004 but the same has also been rejected vide order dated 5.1.2007.
3. Learned Counsel for the petitioner contended that 32 vacancies were advertised and only 24 appointments were made meaning thereby that against all the advertised vacancies appointments were not made and the respondents have arbitrarily denied appointments to the petitioner who are selected candidates. He further contended that on the one hand the respondents did not make appointments from the said panel on the ground that after one year the panel lapsed though subsequently some more appointments were made from the same panel. After creation of Gwalior Region, though there were 13 vacancies and names of all the 11 candidates of the pane! of general category were sent but only 7 appointments were made which shows arbitrariness on the part of the respondents.
4. We have heard learned Counsel for the petitioner and perused the record.
5. From a perusal of the copy of counter affidavit filed before the Tribunal by KVS, we find that admittedly 32 vacancies for Kendriya Vidalayas located within the jurisdiction of Lucknow region of KVS were advertised. When the process of recruitment was going on, some of the part of Lucknow Region was separated by creation of a new region i.e. Gwalior Region and a number of Kendriya Vidalayas were placed thereunder, causing reduction of vacancies in Kendriya Vidalayas remain in Lucknow region. On account of reduction of vacancies only 21 appointments were made in Lucknow region i.e. 14 General, 3 OBC and 4 SC candidates. Since life of the select was one year and 3 more vacancies occurred in 1996, therefore, 3 more candidates from this panel were appointed which included 2 General and 1 SC candidates. In respect to Gwalier region, the Assistant Commissioner, Lucknow sent proposal in 1996 sending names of remaining candidates from the said panel where from 7 candidates only could be appointed which are general.
6. The question now up for consideration is whether non appointment of petitioner by itself infringes his fundamental right under Article 16 of the Constitution of India. On his own showing it is admitted that against 32 vacancies advertised, the panel was prepared for 35 candidates out of which 31 have already been appointed. So far as the Lucknow region is concerned, it is categorically stated in para 5 of the counter affidavit filed in review application before the Tribunal that due to shifting of some Kendriya Vidalayas from Lucknow region to others and also due to inter-regional transfers of Lower Divisional Clerks only 23 vacancies remain and, therefore, 23 candidates from panel were appointed. Para 5 of counter affidavit is reproduced as under:
That due to shifting of some of Kendriya vidyalaya from Lucknow region to another and also due to inter-regional transfer of Lower Divisional Clerk, only 23 vacancies remain and accordingly 23 candidates of the panel were appointed. There was no need to make any further appointment from the panel prepared in the year 1995.
7. The petitioner has replied it in para 4 of his rejoinder affidavit (Annexure 10 to writ petition), wherein he has said that subsequently some vacancies occurred in 2005. The averment made in para 5 of the counter affidavit as such has not been disputed. In para 5 of the rejoinder affidavit it is admitted by the petitioner that from the panel, 23 General, 5 SC and 3 OBC candidates have been appointed. The petitioner's position in the panel is at serial No. 25 of general candidates. Even assuming that the respondents were under obligation to fill up of all the 32 vacancies, we find that 31 appointments were already made against which only 23 general candidates could be appointed and only 1 vacancy remain. The petitioner obviously could not have been appointed even if all 32 vacancies would have been filled in. His position being 25th in the list of selected general candidates still one General candidate higher in merit to the petitioner is available for appointment against the available vacancy. It is well settled law that the vacancies occur subsequently, which were not advertised cannot be filled up from the candidates of earlier selection. In the case of District Judge, Baghpat and Anr. v. Anurag Kumar and Ors. Special Appeal No. 702 of 2005 decided on 31.5.2005 a Division Bench of this Court held as under:
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 un-enforceable in law.
8. In Ashok Kumar and Ors. v. Chairman, Banking Service Recruitment Board and Ors. , the Supreme Court held as under:
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.
9. In Prem Singh and Ors. v. Haryana State Electricity Board and Ors. , the Apex Court observed as under:
If the requisition and advertisement are for a certain number of posts only, the State cannot make more appointments than the number of posts advertised.
10. Thus the petitioner at the best was only a wait list candidate hence could not have claimed appointment against the vacancy which was not advertised in the said selection. Another issue needs to be answered is the right of a selected or wait list candidate to get appointment and seek a direction for such appointment.
11. A wait list candidate has no indefeasible right to get appointment merely for the reason that his name finds place in the wait list. In Sri Kant Tripathi v. State of U.P. it was held "An applicant, whose name appears in the wait list, does not get an enforceable right for being appointed to a post."
12. In Surinder Singh and Ors. v. State of Punjab and Anr. the Court held "The 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."
13. In State of Bihar and Ors. v. Amrendra Kumar Mishra after referring various earlier judgments on the issue, the Hon'ble Apex Court held "The decisions noticed hereinbefore are authorities for the proposition that even the wait list must be acted upon having regard to the terms of the advertisement and in any event cannot remain operative beyond the prescribed period."
14. In U.P. State Road Transport Corporation and Anr. v. Gobardhan and Anr. while upholding the contention of the learned Counsel for the Corporation that the wait list candidate has no right, the Hon'ble Apex Court held "since the Corporation itself has taken decision to appoint a person from the wait list, such a wait list candidate is entitled to be appointed".
15. This view has again been reiterated in State of J & K and Ors. v. Sanjeev Kumar and Ors. 2005 (1) SCC 148 and the Hon'ble Apex Court held "As it clearly spelt from the quoted portion, the Government can by a policy decision appoint people from the waiting list."
16. In Bihar State Electricity Board v. Suresh Prasad and Ors. the Court upheld non-preparation of any wait list where rules do not provide for preparation of a wait list and it was held that preparation of a wait list is not at all obligatory or mandatory unless the recruitment rules provide for preparation of a wait list in addition to the select list.
17. Thus whether a person in the wait list against the existing vacancy should be appointed or not and the period for which such a wait list shall be operative is a policy decision and is within the administrative domain of the Government. It is always open to the Government to take a policy decision in this regard.
18. Here, we find it useful to refer a Division Bench judgment in Civil Misc. Writ Petition No. 41612 of 1998 Brij Mohan v. State of U.P. and Ors. decided on 18.1.2002 wherein this Court held as under:
We do not agree with this submission for the simple reason that the G.O. dated 31.1.1994 clearly mentions that the waiting list will only survive beyond one year if within that period of one year the concerned department requests to send the names from the waiting list. In the present case the concerned department wanted 63 names from the waiting list and these were supplied by the Commission. No further intimation was sent by the concerned department within one year and hence the waiting list has been exhausted. In our opinion, the waiting list has come to an end after the expiry of one year and the same cannot be utilized now FIR filling up more vacancies. These vacancies can now only be filled up by another examination held by the Commission.
19. Same view has been taken by this Court in Civil Misc. Writ Petition No. 1204 of 1998 Arjun Prasad Pathak and Ors. v. State of U.P. and Ors. decided on 31st October. 2002.
20. From the aforesaid decisions, it is evident that a wait list candidate can seek appointment only if such a provision has been made under the Rules or an executive order having force of law or the scheme of appointment enforced by the authorities provide for making such appointment from the wait list, in case vacancy remains unfilled on account of non-joining of the selected candidates. However, it is neither obligatory nor mandatory for the employer to prepare simultaneously a wait list or to keep a wait list intact as and when any selection is made besides the select list, unless a provision is made making it obligatory to prepare a wait list. It is always open to the employer not to prepare any wait list and after declaring the result of the selected candidates, to make appointment therefrom and in case any vacancy remained unfilled, to make a fresh selection instead of looking for a wait list. However, where the provision for wait list has been made, the same has to be observed strictly and within the four corners of such provision and not beyond that. The right of wait listed candidate is a kind of right which is not enforceable in the absence of any statutory provision conferring a right upon him to claim appointment, in case selected candidate failed to join. In other words, the right of a wait-list candidate is a very weak kind of right and is not enforceable unless supported by a rule or executive order having force of law.
21. Learned Counsel for the petitioner placed reliance on the Apex Court judgment in V. Charulatha and Ors. v. S. Gunalan, Chairman, Railway Recruitment Board JT 1995 (3) SC 557 and a Division Bench judgment of this Court in Ram Dutta v. State of U.P. and Ors. 2002 (2) SC 263. The aforesaid judgments no where lay down any proposition of law that once a candidate is selected or in the wait list he has a right to get appointment against a vacancy occurred subsequently. In Charulatha (Supra) a selection was held by the Railway Recruitment Board for about 500 post in non technical categories and the written examination was held on 15 November 1987, the result was published on 7 September 1988 and interviews were held on 10 October 1988. It was found by the authorities that some of the candidates who had secured very high marks in written test have done very badly in interview and therefore, directed to hold second written examination. It was challenged by some of the selected candidates before the Tribunal and some approached the High Court. The Tribunal held that the Railway Recruitment Board was entitled to direct for second written examination in respect of those candidates who had been declared eligible for interview. In the writ petitions, the order directing second examination was set aside by the Hon'ble Single Judge and it was held that list of the successful candidates already made should be published. The judgment was confirmed by the Division Bench where against SLP was filed. During the pendency of the matter before the Apex Court, a direction was issued that the selected candidates be appointed according to merit in the existing vacancies but the appointments were not made and in these circumstances upon an application filed in that behalf to take action against the Apex Court directed the authorities to appoint all the selected candidates within the prescribed time. The aforesaid judgment therefore having been passed in different set of circumstances does not lay down any proposition of law that a selected candidate has a right to be appointed which could be enforced by issuing a writ of mandamus.
22. In Ram Dutta (supra) selection was held by Commission. During the said period a number of vacancies remained unfilled due to non joining of candidates recommended by the commission. Despite the fact that the requisition was sent by the Government requiring Commission to send names of the candidates from the wait list it delivered. This Court held that Commission cannot refuse to send names and in these circumstances a mandamus was issued to the Commission to make recommendation since the appointing authority was inclined for appointment as is evident from the following;
In the present case what we find is that in fact the vacancies continued to be available during the validity/currency of the panel as a large number of recommendees of the Commission from the select list did not turn up to join the posts. In fact the Appointing Authority had requested the U.P. Public Service Commission to make its recommendation and send the additional list of the names of suitable candidates as the selected candidates who had been refused to turn up. But the Commission did not respond. In the result the vacancies remained unfilled. This having happened during the currency of the select list as well as the waiting list there could be no justification for depriving the petitioner from getting the appointment on the post in question.
23. From the aforesaid it is evident that the said judgment also does not help the petitioner as the same has been rendered in different facts and circumstances of the case.
24. Lastly learned Counsel for the petitioner relying upon on the Apex Court judgment in Jai Narain Ram v. State of U.P. and Ors. contended that the petitioner has right to seek appointment and it is his constitutional right of equality.
25. The aforesaid judgment has been considered by the Hon'ble Apex Court itself subsequently in Bihar State Electricity Board v. Suresh Prasad and Ors. (supra) wherein also a similar argument was advanced relying on the aforesaid judgment and the Hon'ble Apex Court in para-8 of the judgment held as under:
Before concluding, we may refer to two judgments cited on behalf of the respondents. In Jai Narain Ram v. State of U.P. and Ors. , four out of fifteen posts were reserved for members of the scheduled castes. Four candidates were selected by the Public Service Commission. They did not join the service. As a consequence, four reserved posts fell vacant and they were required to be filled up by the reserved candidates alone. The PSC had recommended the names of four candidates who did not join. The appellant could not be recommended as there was no request by the Government for putting the appellant in the waiting list. Therefore, the appellant approached the High Court for a direction to the PSC to recommend his name of appointment in the Accounts Service. The High Court dismissed the writ petition on the ground that the appellant was not put in the select list and, therefore, no direction could be given to appoint him in the service. Being aggrieved, the appellant came before this Court by way of special leave petition, in which he alleged that since the selected candidates did not join, the four reserved posts fell vacant and they were required to be filled up by the reserved candidates and since he was a reserved category candidates duly selected, he was entitled to. be appointed. In the counter-affidavit, it was conceded by the respondent before this Court that the reserved posts can be filled up by the candidates of the reserved categories only. In the circumstances, this Court took the view that in view of the admission made on behalf of the respondent-Government that reserved posts can be filled up by the candidates of reserved categories only, the Government was directed to issue an order of appointment to the appellant. A bare reading of the judgment shows that the matter was concerning filing of a reversed post. Further, a concession was made in the counter-affidavit filed on behalf of the respondent-Government that since the posts were reserved posts, they can only be filled up by the candidates of reserved categories. In the present case, we are not concerned with the appointment to reversed posts. Therefore, the judgment of this Court in Jai Narain Ram v. State of U.P. and Ors. (supra) has no application to the facts of the present case. .
26. Thus, as observed by the Hon'ble Apex Court in Bihar State Electricity Board v. Suresh Prasad and Ors. (supra), since the post in question was of reserved category and a concession was made in the counter affidavit on behalf of the Government, it was directed to be filled in but there is no general law laid down therein that a select list candidate has a right to seek appointment.
27. Earlier also the case of Jai Narain Ram v. State of U.P. and Ors. (supra) came up for consideration in Ashwani Kumar Singh v. U. P. Public Service Commission and Ors. and there also the Hon'ble Apex Court held that the said judgment was rendered in a different factual and legal background and relates to non-appointment of persons belonging to reserved category, as would be evident from the following "it shall be necessary to consider whether Jai Narain Ram (Supra) has application to the facts of the case. A bare reading of the judgment shows that it was rendered in a different factual and legal background, and related to non-appointment of persons belonging to reserved category. This is evident from even a cursory reading of paragraphs No. 6 and 7 of the judgment. It has not laid down as a rule of universal application that whenever vacancy exists persons who are in the merit list perforce have to be appointed."
28. Therefore, reliance placed on the Apex Court judgment in Jai Ram (Supra) in our view also does not help the petitioner. It is thus well settled now that in the absence of a provision, a selected candidate has no right of appointment. In the absence of such a right, a writ of mandamus cannot be issued for appointment of such a candidate. In view of the aforesaid, the Tribunal has not erred in rejecting claim of the petitioner.
29. The writ petition lacks merit and it is accordingly dismissed.