1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.963 OF 2009 Mohd Yusuf Usmangani Memon ..PETITIONER VERSUS The State of Mah. & ors. ..RESPONDENTS Mr A.V. Patil, Advocate holding for Mr S.B. Pulkundwar for the petitioner; Mr K.J. Ghute Patil, AGP for respondents no.1 & 2; Mr B.S. Mundhe, Advocate for respondent no.3; Mr B.S. Kudale, Advocate for respondent no.4. CORAM : P. V. HARDAS AND R. K. DESHPANDE, JJ. DATE : 10th July, 2009 PER COURT : This is a petition under Article 226 of the Constitution of India by which the petitioner prays for quashing and setting aside the appointment/posting order dated 21.10.2008 issued to respondent no.4 and to consider the claim of the petitioner for the appointment on the post of a Pharmacist. It appears that the petitioner has also filed Civil Application No. 6826 of 2009 by which the petitioner has prayed for leave to amend the petition for incorporating a challenge to the fresh advertisement which is 2 issued on 11.6.2009 in respect of recruitment to the post of a Pharmacist. 2. Pursuant to an advertisement, the petitioner and respondent no.4 and others had applied. A written examination came to be conducted and after oral interview a merit list came to be drawn. In the said merit list respondent no.4 was placed at sr.no.1, while petitioner was placed at sr.no.2. A serious debate was raised by the petitioner in respect of the fact that the respondent no.4 was completely blind and, therefore, was unfit for appointed to the post of a Pharmacist. The aforesaid advertisement in relation to the post of a Pharmacist was reserved for persons with “low vision”. In the light of that it was seriously contended by the petitioner that respondent no.4 was totally blind and, therefore, was unfit to perform his duties as a Pharmacist. Series of representations came to be addressed by the petitioner to the authorities. It appears that the authorities ultimately terminated the services of respondent no.4 by an order dated 6.5.2009. We are further informed by the learned Counsel who appears for respondent no.4 that the respondent no.4 has resorted to such remedies as are available to him in law for challenging his order of termination. 3. Shri A.V. Patil, learned Counsel for the petitioner has urged before us that since the petitioner was placed at sr.no.2 in the merit list, the petitioner is entitled to be appointed and the aforesaid advertisement which is issued on 11.6.2009 inviting applications to the post of a Pharmacist i.e. the post which was earlier held by respondent no.4, is bad in law and liable to be struck 3 down. It is also urged that the written examinations are scheduled to be conducted tomorrow i.e. 11.7.2009. It is the contention of the respondents that the merit list/select list which was drawn on 26.6.2007 was only valid for a period of one year and consequently the said list has lapsed and, therefore, the petitioner is not entitled to be given the appointment to the post of Pharmacist. 4. In this behalf Shri A.V. Patil, learned Counsel for the petitioner has placed reliance on the judgment of Supreme Court in Jai Narain Ram vs. State of U.P. & ors., AIR 1996 SC 703. In the aforesaid judgment the Supreme Court has held that the candidates who had been duly selected on the posts had opted not to join the service and, therefore, it amounted to denial of appointment to the candidates next in the order of merit. The aforesaid ratio is explained by the Supreme Court at paragraph 6 of the judgment, which reads as under :- “It is not in dispute that the appellant is a reserved candidate belonging to Scheduled Castes. In view of the admitted position that four posts were reserved in the Finance Department in category I mentioned earlier and 4 selected candidates appeared to have not joined in the service, as asserted in para 11 of the S.L.P. and not specifically denied by the respondents in the counter-affidavit in para 6 as referred to earlier, it is clear that the appellant also is the 4 th candidate in the order of merit 4 would have been selected, had there been a requisition by the Government for appointment of the reserved candidates.” 5. In the present case, the respondent no.4 had been appointed and respondent no.4 had joined and thereafter his services came to be terminated. The petitioner, therefore, has no legally enforceable right, though he may be standing next in the order of merit, to claim that the respondents should be restrained from advertising the said post and should be directed to appoint the petitioner. A reference in this behalf may usefully be made to the judgment of Supreme Court in The State of Haryana vs. Subash Chander Marwaha & ors., (1974) 3 SCC 220. The Supreme Court in the aforesaid judgment has held that mere entry of a candidate in the list does not give him right to be appointed. In the present case, pursuant to the subsequent advertisement the petitioner has applied in response to the said advertisement. Though the petitioner claims to have applied without prejudice to his right and contentions in this petition, the fact that the petitioner has applied itself would clearly indicate that the petitioner has acquiesced with the issuance of the advertisement. In any event, the petitioner has no legally enforceable right and since the petitioner has 5 applied, the petitioner would be required to compete with all other candidates. 6. In the light of that, we do not notice in merit in the petition and the same is summarily dismissed. Consequently, Civil Application No.6826 of 2009 for amendment also stands dismissed. No order as to costs. [ R. K. DESHPANDE, J.] [ P. V. HARDAS, J.] amj/wp963.09