Case: Vallampati Sathish Babu Vs. The State of Andhra Pradesh &amp; Ors

2. The facts leading to the present appeal in nutshell are as under:-2.1 That the appellant herein participated in the selection process carried out by the respondents for recruitment of Teachers under the Notification dated 30.01.2012 called as DSC-2012. Thirty-three (33) posts were notified and the recruitment process was initiated for the notified 33 vacancies. The appointments were governed by the Andhra Pradesh Direct Recruitment for the post of Teachers (Scheme of Selection) Rules, 2012 (hereinafter referred to as Rules, 2012), which were framed in exercise of the powers conferred by Article 309 of the Constitution of India r/w sub-sections (3) and (4) of Section 169, sub- sections (3) and (4) of Section 195 and Section 243 of the Andhra Pradesh Panchayat Raj Act. Rule 16 of the Rules, 2012 provided for preparation of selection lists. As per sub-rule (5) of Rule 16 the number of candidates selected shall not be more than the number of vacancies notified. It also specifically provided that there shall be no waiting list and posts, if any, unfilled for any reason whatsoever shall be carried forward for future recruitment.2.2 That vide G.O. Ms. No. 91 dated 03.11.2012, the State issued detailed guidelines. Clause 8 provided for verification of certificates and preparation of select lists (which shall be dealt with hereinbelow).2.3 The appellant participated in the said selection process, however, secured 58.08 marks and placed at 34th position. The respondents declared that the candidates upto serial No. 33 (notified vacancies) in the merit list are being selected in the available vacancies and accordingly invited the 33 candidates to appear for counselling. One candidate, who secured 18th rank with 60.83 marks did not turn up for counselling that was held on 28.12.2012. Consequently, one post in general category remained unfilled due to the non-participation of the said candidate. The appellant made a representation before the respondents seeking for consideration of his candidature relying upon para 8 of the Guidelines issued under G.O. Ms. No. 91 dated 03.11.2012. As the appellant was not offered the employment, the appellant approached the Tribunal by filing O.A. No. 4916 of 2013 seeking a direction to the respondents to appoint him as Secondary Grade Teacher (S.G.T.) in the unfilled vacancy. The Tribunal allowed the said O.A. holding that the appellant is entitled for appointment as per para 8 of the Guidelines issued under G.O. Ms. No. 91 dated 03.11.2012.2.4 Feeling aggrieved and dissatisfied with the order passed by the Tribunal, the State preferred writ petition before the High Court and by the impugned judgment and order, the High Court has allowed the said writ petition and has quashed and set aside the order passed by the Administrative Tribunal.2.5 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original applicant has preferred the present appeal.

Reasoning:
6. The selection process was carried out by the respondents for recruitment of teachers. 33 posts were notified and therefore the recruitment process was started for the notified 33 vacancies. The merit list/select list of 33 candidates was published. However, one of the selected candidates did not appear for counselling and therefore, one post remained vacant. The appellant herein being the next meritorious candidate, being at Serial No. 34, is claiming the appointment to the post which remained unfilled due to one selected candidate, who did not appear for counselling. The Tribunal allowed the said claim. However, the High Court by the impugned judgment and order has set aside the order passed by the Tribunal and has held that considering the relevant statutory provisions and the Guidelines for the purpose of preparation of the select list, the appellant shall not have any claim to the post, which remained unfilled, as there was no provision for the waiting list.7.3 On a fair reading of Rule 16 of the Rules, 2012 read with the Guidelines referred to hereinabove, once the final selection list is prepared, there shall be no waiting list and posts, if any, are unfilled for any reason whatsoever, shall be carried forward for future recruitment as per sub-Rule (5) of Rule 16 of the Rules, 2012.7.4 In the present case, the final selection list of 33 candidates was prepared. Thereafter all the selected candidates were called for counselling, but one of the candidates did not report for counselling. The aforesaid event took place after the final selection list was prepared and published. As there was no requirement of preparation of a waiting list, the appellant claiming to be the next in the merit cannot claim any appointment as his name neither figured in the list of the selected candidates nor in any waiting list as there was no provision at all for preparation of the waiting list. Sub-rule (5) of Rule 16 is very clear. Therefore, the post remained unfilled due to one of the candidates in the final list did not appear for counselling and/or accepted the employment. Hence, that post has to be carried forward for the next recruitment.7.5 The appellant could have claimed the appointment to the post which remained unfilled provided there is a provision for waiting list as per the statutory provision. In absence of any specific provision for waiting list and on the contrary, there being a specific provision that there shall not be any waiting list and that the post remaining unfilled on any ground shall have to be carried forward for the next recruitment. The appellant herein, thus, had no right to claim any appointment to the post which remained unfilled.7.6 In the present case, the first provisional list was published on 01.12.2012. Thereafter, a revised provisional list was published on 12.12.2012 and subsequently a final selection list was published on 25.12.2012 of 33 selected candidates and the candidate, who did not appear for counselling was one of the candidates in the final selection list dated 25.12.2012. Therefore, once there was no provision for waiting list, the post, which remained unfilled due to one of the candidates in the final selection list not appearing for counselling will have to be carried forward to the next recruitment as per sub-rule (5) of Rule 16.8. Now, the submission on behalf of the appellant that as per sub-rule (5) of Rule 16, all the 33 posts notified are required to be filled is concerned, the same has no substance. Sub-rule (5) of Rule 16 is required to be read as a whole and in its entirety and the same is required to be read alongwith the Guidelines issued. What is provided under sub-rule (5) of Rule 16 is that the number of candidates selected shall not be more than the number of vacancies notified. However, it further provides that there shall be no waiting list and posts, if any, unfilled for any reason whatsoever shall be carried forward for future recruitment. Therefore, there shall not be any appointment of more than the number of vacancies notified but that does not mean to prepare and operate the waiting list, which otherwise is specifically not provided for under the Rules, 2012.8.1 An identical question came to be considered by this Court in the case of Suresh Prasad and Ors. (supra). In the said decision, it is specifically observed and held that even in case candidates selected for appointment have not joined, in the absence of any statutory rules to the contrary, the employer is not bound to offer the unfilled vacancy to the candidates next below the said candidates in the merit list. It is also further held that in the absence of any provision, the employer is not bound to prepare a waiting list in addition to the panel of selected candidates and to appoint the candidates from the waiting list in case the candidates from the panel do not join. The aforesaid decision of this Court has been subsequently followed by the Andhra Pradesh High Court in the case of Samiula Shareef and Ors. (supra).9. Applying the law laid down by this Court in the case of Suresh Prasad and Ors. (supra) to the facts of the case on hand and considering the statutory provisions contained in Rule 16 of the Rules, 2012 read with the Guidelines, we are of the view that the appellant cannot claim appointment on the unfilled vacancy being next below the candidate in the merit list. If the submission on behalf of the appellant is accepted, in that case, it will lead to providing for preparation of a waiting list, which otherwise is not permissible as per sub-rule (5) of Rule 16. If the same is permitted, in that case, it will be directing the respondents to act contrary to the statutory provisions. Therefore, the High Court has not committed any error in refusing to appoint the appellant to the post which remained unfilled due to one of the selected candidates in the final selection list not appearing for counselling. The impugned judgment and order passed by the High Court is absolutely in consonance with the relevant statutory provisions with which we agree.