Indian Kanoon - Search engine for Indian Law

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 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."

"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.

(Emphasis supplied)

16. It has been held by Hon'ble the Supreme Court in Mukul Saikia v. State of Assam, reported in (2009) 1 SCC 386 in Para 33 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)

17. It has been held by Hon'ble the Supreme Court in Rakhi Ray v. High Court of Delhi reported in (2010) 2 SCC 637 in Para 7, 11, 12 and 24 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 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.)