Document Fragment View

Matching Fragments

Appeal arising out of SLP No. 11939/97 is also against the judgment dated December 17, 1996 of the Punjab and Haryana High Court in Civil Writ Petition No. 1382/96. In this appeal, there is only one appellant and the issue involved before the High Court was different inasmuch as he had contended that he being No. 6 on the waiting list of lecturers for a particular institution and claimed right to appointment when one of the candidates selected did not join. This plea was negatived by the High Court in view of the judgment dated September 28, 1994 which is being impugned. The High Court also held that the petitioner had come to the court too late and that he should have filed the writ petition either in 1994 or early 1995 but he came to the court only in September 1996 by which time the select list had lapsed.

The High Court in the impugned judgment had noted a decision of this Court in Gujarat State Dy. Executive Engineers Association v. State of Gujarat & Ors., [1994] Supp. 2 SCC 591 and relying on that had quashed the appointment of the teachers over and above that advertised. We may refer to paras 8 and 9 of the judgment which we reproduced as under :

"Coming to the next issue, the first question is what is a waiting list?; can it be treated as a source of recruitment from which candidates may be drawn as and when necessary?; and lastly how long can it operate? These are some Important questions which do arise as a result of direction issued by the High Court. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. How it should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent authority prepares a waiting list then it is in respect of those 10 seats only for which selection or competition was held. Reason for it is that whenever selection is held, except where it is for single post, it is normally held by taking into account not only the number of vacancies existing on the date when advertisement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selections are held regularly by the Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided than candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the Selection was held for it. He has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons.
A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is opera-tive 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 vacancies 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 was 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."

Prem Singh case [1996] 4 SCC 319 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 Association [1994] Supp. 2 SCC 591, 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 appointment. 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.