15LE BEtfCN IN THE HON'BLE HIGH COURT OFCHHATnSGARH AT BILASPUR fC.G.t WRIT PETITION fS)NO. k)°'v" OF 2010 PETITIONER RESPONDENTS ^•^. .N^S^ .^My ^^y >>y'y ^'0/ <?.'&« ^ pn " ; f^''-^i'S-'T'i ' <! .:.7'' '' /^ /' ft/$/. ' r!S-r *^W^.- ^s^ <^C"CS? a^^ ^ 3. ^^4. ^5. Vinay Kumar Pandey Son of Shri Vishwanath Randey, aged about 35 years, Resident of Kenabandh (Bouripara) Ambikapur, District Surguja (C.G.). VERSUS State of Chhattisgarh, through: the Secretary, Panchayat and Rural Devetopment Department, D.K.S. Bhawan, Raipur, District Raipur <C.G.). The Colleetor, Ambikapur, Distrtet Surguja (C.G.). The Chief Executive Officer, Zita Panchayat Ambikapur, Kstrict Syrguja (C.G.). TheChief Executive Officer, Janpad Panchayat Lundra, Post Lundra, District Surguja (C.G.). Chtiattisgarh Professional Examination Board, Raipur District Raipur (C.G.), through its Examination Controller. WRn" PETITION UNDER ARTICLE 226 OF THE CONSTETUTION OF INDIA 1. PARTICULARS OFTHE PETITIONER As given in the cause title. l^i!^7'!_j lillB &— AF^\ HIGH COURT QF CHHATTISGARH : BILASPUR PETITIONER RESPQNDENTS WRITPETITIONOyNO. 6648 OR 2010 VinayKumar Pandey Versus State of Chhattisgarh & Others (Writ Petition under Article 226 of the Constitutionof India) Single Bench : Hon'ble SKri Satish K. Agnihotri, J. Present:- Shri y.K.Pandey.Advocateforthepetitioner. Shri N.N.Roy, Panel LawyerfortheStafe. ORDER(QRALy (Passed on 3rd day of March, 2011) 1, Bythispetitioh,thepetitiQnerseeksadirectiontotherespondents No.3 & 4 t6 eondude the recruitment process fbr the post of Shiksha Karmi Grade-111 in Arts sybject and thereafter issue an orderofappointrhentinfavojurofthepetitioner/ifheisfbundfitfor appointmentbytheselectidnf^mmjttee.^^ 2. Ttre brieffacts, in nutshell, as projected by the petitioner, arethat inpursuaneeoftheadvertisernentdated^ 3.10.2009 (Annexure P-1), the petitioner made an application for appointment bn the post of Shiksha^Karmi Grade-111 in Janpad Parichayat Lundra^ wherevacancyOfthep6stinArtssub)ectwasnotifiedtQbe39,oyt of 39; 10 ppsts were for unreserved categories;2 posts for S.C., 21 posts forS.T. and 6 posts for OBC. The petitioner participated in the selection process for appointment against unreserved post. H& obtainedl 12.12 marks andinthe meritlist.hewasplacedatserial No.4.Accordingly,hewascalledforcpunselingonj 8.4.2010. Thereafter,(appQiritmentwas refusedon thegroundlthMtK^Fe.was novac^tpostofShikshaKarmiGrade-lllinArtSsubject.^* 3. Slirj Pahdey, learned couhsel appearihg for the petitipner submits that once the petitioner has been selected, the p6titioher acqujres • l^'^^^^ ^MM • • sss K§ IR l!|ill:i.: ...l.iifil!" iJ:!ffl a right to be appointed and subsequent decision to hold that there was no pbst available was unsustainable in theeyes oflaw. There was alsa a dispute with regard to availabilityof vacancies. The resultof the selection process was declared in the month of January, 2011. As per sub-clause (xi) of clause (g) ofsub-rule (7) of Rule 6 bf the Chhattisgarh Panchayat Shiksha Karmi (Recruitment ahd Conditions pfService) Rules, 2007, the validityof the period of select/waitinglistwas 13months. Learned counsel further relies on the decisions of the Supreme Gourt in Stete o/' MP. ancf Others v. Sanjay Kumar Pathak and Others^ and Rakhi Ray and Others v. High Court fff Delhi and Others and Director, SCTI for Medical Sciemse & Technology andAnother v. M, Pushkaran in support 6f his coritention that the State cannot deny appointmentwithout cogent reaSons. Leamed counsel further submits tliat phce vaeancy has been deelared as available for appointments, the same can nfit be held as not-available subsequently. The identical isSuecame up into consideration before this Court in the matter of Rajeshwah Rathod & Ahotlier v. State of C/7/?affisgar/7 & 0 ers and other connected matters, thus, nothing remains inthis petition fbradjudication. The Supreme Court in San/ay Kumar Pa a/f (supra), observed as under:.'.:;' .:: :::,". ' "• : : :.' •'. 1.:';'. :.. ' ;• . :. ; "18.....Even where, it is trite, the names of the persons appeared in the select list, the same by itself would not give rise to a legal rigtit unless the action on the part of the State ^ is found to be unfair, 1(2008)1SCC456 2(2010)2SGC637 . . 3(2008)1SGC448. WP(S) No.4522 of 2009, decided on 28.2.2011 ^) B ^SB^i^^ i.d5 s"-€" 'iS':'!s?^:S^^'^^iWl^ -"•.^ ;- rsa^l •-€/ r^ ^ unreasonable or mala ficle. The State, thus, subject to acting bona fide as also complying with Ihe principles laid down in Articles 14 and 16 ofthe Constitution of India, is entitled to take a decision not to emplQy any selected (s/c candidate) even from amongst the Select List....." ::' '. ., : ; ,'; ::• • :'. : : 1 8. The Suprme Courtin Rakft/Rayancf 0 ers (supra), observed asunder::: :: •:•:•'1.': .•''\;^' •:'.,::'': ''.•"•;•::- ' ,; "24. Apersonwhose name appears in the select listdoes notacquireany indefeasible right of appointment. Empanelmerit at the best is a condition of eligibility forthe purpose of appointment and by itselfdoes not amount to selectioh or create a vested riglit to be aippointed. The vacancies tiave to befilled up as per ' the statutbry rules and in cbnfbrmity wifh the constitutiohal mahdate. 1 n ths instant case.once 13 notified ^ ,^ .vacaHcies^,i^re;^;filled'?up,/:'t^^ selection pro<%ss;came to a thus there;c6uld be no scope ofany further appointment." ^ 9. In Shankarean Dash v. Un/on of /ndfa6, the Supreme Court .observedasunder/: .:'Y,':':;,.'' ! .-' .•:;.'^ ., "7;/ It is not correct to say ;tKai ^ if a nymber of ^vacancies are notified for appointment anti adequate number of candidates are fouhd fit, the successful candidates acquire an inclefeasible right to be appointed which^ cannot be legitimately denied. prdinarily the notificatibn merely^amounts to^ an invifation:to qualifiecl candidates.to ^ apply for recmitmeht and ohlth^ selection they do riot acquire any right to the post. Unless the relevaht recruitment rules so jndicate, the State is under no legal duty to fill up atl drany of the vacaricies. However, if does not mean that the State llas the licence of acting rin ah arbitrary^ manner. The decision not to fill up ; (1991)3SCC47 the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merjtofthe Gandidates, as reflected at the recrujtmeht test, and no discriminationcan be permitted. This correct position has been consistently followed by this Court, and we do not find ariy discordant — note in the deGisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana or Jatendra Kumar v. Stateof Punjab." 10. The Supreme Court in Asha Kaul (Mrs.) and Anotherv. State ofJammu ahdKaslimir and Others , observed as under: "8. It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasrble right to appointment (State df Haryana v. ^Subhash Chandra Marwaha, Mani Subrat J^in ? v.State of Haryana, State of Kerala v. A. Lakshmikutty) butthat is only dne aspect of the matter. The^ other aspect is the obligation of the government to act fairly. The whole exercise cannot be reduced to a farce; Having sent a requisition/ reqyest to the commission toselect aparticularnumberofcandidatesfori a particular eategory, —in pursuance of which the Gon'tmission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicateSto the govemmeht-the sovemment cannot quietly and without good and valjd reasoris nullify the whole exercise and tell the candidates when they complain that they have no legal rightto appointment......." 11. The Supreme Court in GujaratState Dy. Executive Engineers' Association v. State pf Gujarat ahd Ottiers7, i observed as under:: • : 1' .;. :''" ..••..: ••^: ;:'''"11 : :! ., (1993)28cc573 ' '^f^Sd ^^ BB ^®s ^w Ka ^s" is?^ :RSS B8 K BSBs KS B B ^^s^ K8B• SS \^/i^ ^?^-: WS-'t• ^A :K;F:'-' ws. ^^:; &iK 8i K^. m l1Kl^ ^S^,S~!- fl,4? .^•' 5f "8. Coming to the next issue, the first question is what is a waitihg list?; canit 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 ariseas a result of directiori issued by tHe High Court. A waitihg list prepared in service matters by the competent authority is a list of eligible ahd qualified candidateswho in order of merit are placed below thelast selected Gandidate. How if should operate and what is its nature may be governed y by the rules. Usually it is linked with the selectioh or examinatioh for whicti it is prepared. For instance, if an examination is held say for seleeting 10 Ganclidates for f 1990 and the eompetent ^authbrjty prepares^a waiting list then it^ is' in respect of those IQseats only for : ; 'wHich: , selection : i.^ 6 competition was held. Reason for it is that wheneyerselection is held, exeeRtwhereitisforsinglepOSt.jtis riormally held by taking intb account not only the number of vacahoies existing 6n ^ the date wheh jadvertisemeht is issued 6r applications are invited^ but even those which are likely tp arise; iri future within one year or sb due.to retirement ete. Itis more sowhere selectiohs are held regularly by the Commission. Such lists are prepared either under the rules or even otherwise maihly toensure that thetworking in the dffiperdo'es nott suffer if the selected candidates d6 notjoinfbroneortheotherreasori; orthenext selection brexamination is nof held soon. A candidate in tbe waiting list in the order of merit tias a right to claim that he r may ^be appointed jf one or the other selected candidate does not join. .But pnce the selected candidates join andino vacancy arises due to resignatiohy etc.brfbr.any^otherreasbh^withini the period the list isfo operate.under 71994Supp(2)SCC591 \MM,„.„,. riK^^&i^^ ^SS^SSSvS^. SSaSSMSaSK "^. therules orwithin reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vaeaney which may arise unless the selection was held for it. He has ho yested right except t6 the limjted extent, indicated above, or. when the appojnting authority acts arbitrsirily and makes appointrnent from the waitihg list by picking and choosingforextraneousreasons." 12. In Director, SCTI for Medical Science & Technology (supra), cited bythelearhedcounselappearingf6rtliepetiti0ners,the Supreme Courtobservedasunder: "11. The law operating inthe field in this behalf is neither in doubt nor in dispute. QnlybeGausethenamebfa person appears in the select list, the same by itself may riot be a ground ; for^offering hjmlan appointment A ? person in ttie select list does rtof have any legal right in this behalf. The selectees db hot haVe ahy legal right of appoinfment subject, inter alia, to hona fide action on the part bf ,. ;1 :-thelState...;'" ;•;. ^:.',.:,,,.,. •::v:,':.,. • - : ': :.: - "16. It is, tKerefore, evident that whereastheseleeteeassuchhasno legat right and the superior court in exercise of its' power of judicial review would not ordinarily direct issuance of any writ in absence of ^ , ariy pleading and proof of mala fide or arbitrariness on the^part of ffie^ ^ employer. Each case,' therefore, must be considered on its own merit.'" • •:' ::•:::'' :::.'.'~.:^.:''^.:^ ; ' ::: 13. The Supreme Gourt in Bharat Sahchar Nigam Limited and Othersv. AbtiishekShuklaandAnothef86bservedas under: . •'"17.,,.We,:therefore,.do,notfihdany^^ err6rintheimpugnedjudgrrients;We;j,^ are, hdwever, riotobliviousofthefact , thatordinarilytheiifeofsuchapanel isorie year as has Beeh observed by ; SIK l^^iKl i!i! e (2009) 5 SCC 368 BS B1 •^^: ^K i:S:^..: ^^'^~' ^r^aidB^m^Ef^as.EW t. ilr V, 7 :: ', ...:,. ,-.:'. this Court in Girdhar Kumar Dadhich v. State of Rajasthan. However, the select list was approved by the appellant only in August 2003 and the fespondents having made represehtations within one year therefrom in our opinion, the said requirement also stands satisfied in the instant Gase. Moreover, such a question had not ever been raised befbre the courts below. Had sueh a ~ question been raised, the respondent coiild have dealt with the same. (See Amlari Jyoti Borobah v. State :of :,<Assam)." : 1'. :,^;':..;-:'.. :';':..:::-' :.. ' •; •" 14. The decision of the Supreme Court in A/aseem Ahmad &0rs: 14 State of U.P. & Anr. , cited by the learned counsel appearing for the petitiohers, may not be applicable to ttte facts dfthe presehtcase because in that case the apRellants were appointedwithin oneyear of the declaration ofthe result. Thereafter, sybsequently by order dated 19-9-2003 itwas providedthatonlytheappointmentsmadeafter 19-9-2001 were ad hoc. The Supreme Court held that since all the appellahts were appointed within one yearand^as such, they cannot be held as ad hoc. However, in that case Rule 12 goveming thevalidity did not provide any timelimit. Thus, it was held as under: "11... ..As long as the wait list was' not exhausted, a fresh list cbuld nbt ; be prepared under Rule 12 ahd the| process initiateGl bythe respondents for advertisJng fresh pQsts and^^^^^^^^^^^ ? canceling thewait list by making it as ad hoc is against the provisions 6f ^ theRules." ! ''.,::' •'••.''.l';/^ In the cases ori hand, the validity period is prescribed in tKe RUles, 2007 itself, thus, Naseem Ahmad (supra) is distinguisttabl&onthefactsofthepresentcases. 2011AIRSCW133 1 ^Ji i^l ^ ^»-~..^'.- -T^-^^zr.^-^ss^^^s- 9 'V m •<iw^y „. "w"^' <&aaa3:sls'' ashok 15. It is true that the appointment of the candidates cannot tie dehied on the basis that the candidates who are in the select/waiting list have no jndefeasible rightto appointment. It is not the case ofthe petitioner that any appointment on the post of Shiksh Karmi Grade III in Arts subject has been made. Secondly, the validity period of the select/waiting list has cometo an encf in Febaruary, 2010. The petitioner has failed to establish that the decision of the respondents was unfair, unreasonable or malafide. Thus, it cahnot be presumed that denial ofappoiotment to any person was basey on unfair, unreasonableor malafide grounds. 16. For the reasons stated hereinabove, ho direction to conclude the selectjon process by appbinting the petitioner, ifthe validjty ofthe merit/wajting list has been over in Febaruary, 2010, can be issued. 17. Accordingiy, tHewrit petition is dismissed. 18. Noorderastocosts. ./ Sd/--:•:,.,,':: ': ^^Satish^K. .Agaffiotn Judge Bss BS K• BB• 1 ^^ BS ii^ BSii ^•Sf^wi. KB •^••.^•^,~. •f^K'^yS- ESHart ^^l^i i~ hs>;t.^:;-; Klm "f'\^'^ iM .;^>:^^. P-.''1A1^^'". ^•''^'''•^,: ".^.;^\^ 17 ^^