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

However one cannot generalised that waiting list can be valid for a period of one year
only.
The rules are different from State to State, Like for NPSC the waiting list is Valid only
for 6 months , while some other state service comissions have a waiting list valid for one
year and some recruitment board does'nt have specific time frame.
and the guahati high court does not specify waiting list validity time frame.
and thank you Sudhir Kumar while searching online for the answers to justify my
position i also found some valuable judgement/comments by the courts. here is one.
"provides for allotment from reserved list for the vacancy in the place of those who have
not joined duty, it cannot be strictly interpreted so as to exclude resultant vacancies
caused due to candidates joined and subsequently leave or resign."
"The question relating to right of a candidate to claim appointment out of waiting list fell
for consideration before Supreme Court and other Courts from time to time. In Gujarat
State Dy. Xen Association Vs State of Gujarat (1994 SCC (L&S) 1159 :: CDJ 1994
SC 569 :: 1994 (3) JT 559), the Supreme Court held as follows :- 8. .............. 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 then 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."
"Therefore, it will be evident that the persons, whose names are appearing in the waiting
list, though may not have any vested right to be appointed, but have a limited right to
claim appointment against the post, which were advertised pursuant to which waiting list
prepared and in case of non-joining of candidates or such advertised post falls vacant
because of other circumstances like death or resignation."
"It is not in dispute that the reserved list (waiting list) is prepared and acted upon in case
of non-joining of selected candidates or who join duty but leave subsequently or if the
provisional selection of selected candidates is cancelled for any reason."

ALLAHABAD HIGH COURT

Trilok Nath Mishra And Ors. vs State Of U.P. And Anr. on 17 July, 2002
Equivalent citations: 2002 (4) AWC 2804, (2002) 3 UPLBEC 2675
Author: S Ambwani
Bench: S Ambwani
JUDGMENT
Sunil Ambwani, J.
1. These writ petitions filed by unsuccessful candidates of the Combined Lower
Subordinate Examination, 1998, held by U. P. Public Service Commission, Allahabad
challenge office memorandum dated 15th November, 1999 issued by Secretary, Karmik
Anubhag-4, Government of Uttar Pradesh, Lucknow, issuing direction to give up
preparation of waiting list and reshuffling, in all the selections to be made by U. P. Public
Service Commission, except where there is single post in the cadre.
2. I have heard Sri Ashok Khare, Senior Advocate, for petitioners ; Sri B.N. Singh,
learned counsel appearing for U. P. Public Service Commission, as well as learned
standing counsel for State Government.
3. Brief facts leading to filing of the writ petitions are, that an advertisement No. A-2/E1/98-99 was issued on 6th September, 1998 for holding Combined Lower Subordinate
State Services (Preliminary) Examination, 1998. The petitioners, who are eligible and
qualified, applied and appeared in the examination. They were found successful in
preliminary examination allowed to appear in the main examination and were declared to
have qualified. Interviews were held between 1.11.1999 to 4.12.1999. During this period,
while the interviews were in progress, the impugned office memorandum was issued to
give up preparation of waiting list. A select list equal to the number of posts requisitioned
by State Government from U. P. Public Service Commission, was declared on
19.12.1999. A corrigendum was declared, amending the list on 26.6.2000 and
recommendations were sent to the State Government on the same day.
4. It is submitted that a number of selected candidates did not join, on account of which
equal number of vacancies remained unfilled, during the year of selection and that in case
a waiting list was prepared, the petitioners had a fair chance to be considered for
recommendation and appointment against the vacant posts, left to be filled up for the next
selection, which has not been held so far. These vacancies were required to be filled up in
the year of selection and that all candidates should have been given a fair opportunity to
be considered for appointment. The purpose of waiting list is to fill-up the vacancies in
the event the selected candidates did not join. There is no object or purpose to be
achieved in allowing the vacancies to be carried forward to next selection and that on

these grounds, the office memorandum dated 15th November, 1999, is violative of
Articles 14 and 16 of the Constitution of India.
5. Sri B.N. Singh, learned counsel appearing for Commission, submits that Commission
does not initiate action suo motu with regard to the sending names of substitutes by
reshuffling. It only recommends on receipt of proposals from State Government by
sending names of candidates on the basis of combined examination for vacancies which
are forwarded by the State Government. The State Government has neither informed the
Commission with regard to such vacancies nor demanded substituted candidates. The
State Government has stopped the process of preparation of waiting list and reshuffling
through office memorandum dated 15.11.1999. In Civil Misc. Writ Petition No. 36512 of
2001. Petitioner Nos. 1, 4, 5, 6, and 7 were not selected. Petitioner Nos. 2 and 3 found
their places in the final result but after manual checking, it was found that some
candidates were not allotted their due position and thus a revised list was declared on
24.6.2000 in which petitioner Nos. 2 and 3 were not declared successful. Petitioner No. 2
has also filed a Civil Misc. Writ Petition No. 29477 of 2000 in which counter-affidavit
has been filed.
6. Learned standing counsel defended the impugned office memorandum dated 15th
November, 1999 for the reasons stated in the counter-affidavit of Sri D.K. Verma, Special
Secretary, Karmik Vibhag, Government of Uttar Pradesh, Lucknow. In paragraphs 4 and
5 of this counter-affidavit, it has been stated that increasing number of writ petitions are
filed in High Court by the candidates who do not want to join the posts on reshuffling and
desired to continue on their originally allotted posts. Writ petitions have also been filed
by candidates for giving them benefit of the period of service on the posts allotted to
them after reshuffling and also to give appointments out of reshuffling/waiting list. Legal
difficulties were felt in complying directions given by Courts for which there is no
provision in the Union Public Service Commission and looking into the increasing
tendency of filing such writ petitions restrictions were imposed by Government Order
dated 15.11.1999 to save precious time of Court and Government as well as
Administration. The State Government decided that where the results of the competitive
examination have been declared before 15th November, 1999. the waiting/ reshuffling
provisions applicable in the Government order dated 31.12.1994 shall be applicable and
that Government order dated 15th November, 1999 shall be applicable only where the
results have been declared after 15th November, 1999. In the present case since the result
was declared on 19.12.1999 and the recommendations were made to the State
Government on 24.6.2000, the Government order dated 15th November, 1999 shall be
applicable.
7. A perusal of office memorandum dated 31.1.1994 (Annexure-7 to Civil Misc. Writ
Petition No. 36512 of 2001) shows that the Government was facing some difficulties with
regard to the joining of candidates after they were given appointment letters. A decision
was taken to make correct calculation before requisitioning the vacancies, for issuing
appointment orders within three months of allotment of candidates for filling up
vacancies, and thereafter to cancel the recommendation if they did not join, and
requisitioning the names from the waiting list. Clause (4) of this office memorandum
provided that waiting list shall not be published and shall be kept in sealed envelope with

the Commission for making the candidates available to the State Government, whenever,
it was felt necessary, Clause (5) confined the validity of such waiting list for a period of
one year from the year of selection with a clarification that where the names of
candidates have been requisitioned from Commission within a period of one year, the
waiting list shall remain valid even beyond the period of one year. By the impugned
office memorandum dated 15.11.1999, the State Government took a decision that except
for single post cadre, for all other services, waiting list shall not be prepared and no
proceeding for reshuffling shall be taken. The requisition should be made only after
calculation of vacancies, and that no change shall be made so far as possible for these
vacancies. The selected candidates must join
after receiving recommendation except in cases where the department, institutions,
organizations have been closed or the Court has given any direction to the contrary. The
concerned department shall issue appointment orders within three months and that the
candidates shall be given only one month (time) to Join which can be extended for period
of one month in special circumstances. The appointment letters should be issued only
after character verifications and medical examinations and the recommendation of those
candidates, who do not join within prescribed period should be cancelled and the
resultant vacancies to be carried over to the next selection year. The select list should be
used only for the year for which the vacancies have arisen.
8. Sri Ashok Khare, senior advocate, has relied upon the case of Jai Narain Ram v. State
of U. P. and Ors., AIR 1996 SC 703. In this case Public Service Commission
recommended the names of four duly selected candidates. The names of appellant Jai
Narain Ram and three others--one Balkesh Singh, Bali Ram Prasad. Amar Singh, could
not be recommended, as there was no request by the Government for putting them in the
waiting list. Out of 15 posts, four posts were reserved for scheduled caste. The duly
selected candidates did not opt to join service. The High Court dismissed the writ petition
on the ground that the petitioner was not selected and that there was no information that
he was put in the select list. In appeal, Supreme Court held that the right to seek
appointment to a post under Article 14 read with Article 16(1) and (4) is a constitutional
right to equality. The State failed to perform its constitutional duty to requisition the
Commission to recommend the next qualified person to the post reserved for scheduled
castes. Under the circumstances, the denial of appointment to the appellant and three
others above him is unconstitutional and thus a direction was issued recommending name
of appellant for appointment. In State of U. P. and Ors. v. Ravindra Nath Rai and Ors.,
1999 (2) AWC 1230, a Division Bench of this Court found that after lapse of five years
from the initiation of selection process for the post of Sub-Inspector in Civil Police, list of
candidates chosen to fill up 630 vacancies was declared. On the same date, a
communique was issued from the Police Headquarters under the signatures of the Deputy
Inspector General of Police (Karmik) Uttar Pradesh, notifying that no waiting list had
been prepared, and thus, it would not be possible to send any candidate for training from
waiting list. Eighty six posts were sought to be filled up from the list. Out of 716
recommended candidates, 123 did not join and 13 dropped out of training course
resulting in 136 vacancies. Following the decision in the case of Shankarsan Dash v.
Union of India, AIR 1991 SC 1612, holding that a person may not have indefeasible right

to be appointed, yet this does not mean that the State has the licence for acting arbitrarily,
it was found that the writ petition was maintainable. Following cases of Jai Narain Ram
v. State of U. P. and Ors. (supra) as well as R.S. Mittal v. Union of India, 1995 Supp (2)
SCC 230, in which it was held that the person has a right to be considered for
appointment and that the appointing authority cannot ignore the select panel or decline to
make the appointment on its whims, learned single Judge held that the petitioner has a
right to maintain the petition and directed that the list be utilized for vacancies which had
arisen during the year. The judgment was upheld by the Division Bench. In Ved Prakash
Tripatht v. State of U. P. and Ors., 2001 (1) AWC 669 : 2001 (1) ESC 317, a Division
Bench of this Court opined that candidates from the waiting list must be offered
appointment and a direction was issued to send additional names from waiting list for the
vacancies to which appointments were made but the candidates did not join, in respect of
Assistant Prosecuting Officer Examination, 1996. Reliance has also been placed on
Neelkanth Tripathi v. State of U. P. and Ors., 1995 AWC 1169.
9. Sri B.N. Singh, on the other hand, has cited Judgments in Civil Misc. Writ Petition
No. 16899 of 2001, Surendra Kumar Pandey and Anr. v. State of U. P. and Ors. decided
on 1,3.2002. in which this Court did not grant the prayer of recommending the names out
of waiting list on the ground that the Government order dated 15th November, 1999 has
given up preparation of waiting list and reshuffling and the life of select list was only one
year. In other Division Bench judgment in 'Civil Misc. Writ Petition No. 26913 of 2001,
Dharmendra Kumar Singh and Ors. v. State of U. P. and Ors., decided on 18.1.2002 a
Division Bench of this Court while dealing with the Combined State Upper Subordinate
Services Examination, 1994 in view of Government order dated 31.1.1994, found that
where vacancies were available and the candidates sent from the waiting list, did not join
the list could not be utilized after its validity of the period of one year and thus no relief
could be granted to the petitioners. In Civil Misc. Writ Petition No. 8842 of 1987, Ram
Sutta v. State of U. P. and Ors., a Division Bench of this Court considered the question of
selection to the post of Assistant Development Officer for the year 1981 of which the
result was declared on 10.6.1983, and held that the waiting list was valid for one year. It
expired on 10.6.1984 and that inspite of large number of vacancies remained unfilled the
petitioner could be given only those vacancies which became available within one year
from the date of declaration of result i.e., during the currency of waiting list. Sri B. N.
Singh submits that the office memorandum dated 15.11.1999 is in the domain of policy
decision made by the executive on which judicial bodies cannot sit in Judgment unless it
is assailed on the ground of arbitrariness or discrimination. He relied upon State of A. P.
v. V. Sadanandam and Ors., 1989 Supp (1) SCC 574 wherein it was held that it is not for
judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode
of recruitment of the categories from which the recruitment should be made. These were
matters of policy decision falling exclusively within the purview of the executive.
10. On 20.5.2002, the matter was adjourned to enable Sri B.N. Singh to inform the Court
as to whether any merit/waiting list in respect of the examination, which was held before
the impugned office memorandum was issued, was prepared beyond the number of
candidates recommended for appointment. He informed the Court that no waiting list was
prepared as the impugned office memorandum was made available to the Commission

before the declaration of result of the examination in question, but that a list based on
merit over and above the recommendation was prepared.
11. From the above facts, two questions arise for consideration :
(a) Whether office, memorandum dated 15.11.1999 will be applicable to the subject
selection for which the advertisement was made on 6.9.1998, select list were published
on 19.12.1999 and recommendations made on 24.6.2000?
(b) Whether the decision of State Government of giving up preparation waiting list is
arbitrary, unreasonable, and thus violative of Articles 14 read with 16 of the Constitution
of India?
12. The first question need not detain this Court for long. The effect of office
memorandum dated 15.11.1999 was not to change the selection procedure, namely, the
number of vacancies, eligibility of candidates and method of selection. Petitioners do
have a vested right regarding preparation of select list or a waiting list. The advertisement
was made on 6.9.1998, preliminary examination was taken on 7.2.1999, main written
examination was held in June, 1999, and interviews were held between 1.11.1999 to
4.12.1999. Final result was declared on 19.12.1999. The impugned office memorandum
dated 15.11.1999 was issued while interviews were in process. It was not issued only for
subject selection but covered all the selections to be made by the U. P. Public Service
Commission for the State Government. A corrigendum notification dated 24.6.2000 was
published in news paper 'Rastriya Sahara' on 25th June, 2000 with regard to the selected
candidates in the circumstances the first question is answered in affirmative.
13. The next question needs closer-examination as it affects all the selections to be made
by the U. P. Public Service Commission. The earlier notification dated 31.1.1994
confined the list of select list for a period of one year. In the present case, the final select
list was recommended by notification dated 24.6.2000. A Constitution Bench of Supreme
Court in Shankarsan Dash v. Union of India. (1991) 3 SCC 47, has held that even if a
number of vacancies are notified for appointment and adequate number of candidates are
found fit, the successful candidates do not acquire any indefeasible right to be appointed
against the existing vacancies. Ordinarily, an advertisement merely amounts to an
invitation to qualified candidates to apply for recruitment on their selection. They do not
acquire any right to the post. Unless the relevant recruitment, rules so indict, the State is
under no legal duty to fill up the vacancies. However, it does not mean that the State has
the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has
to be taken bona fide for appropriate reasons. If the vacancies or any of them are filled up
the State is bound to respect the comparative merit of the candidates, as reflected at the
recruitment test, and no discrimination can be permitted. This position of law has been
followed in State of Haryana v. Subhash Chandra Marwaha, (1974) 3 SCC 220 ; Neelima

Shangla v. State of Haryana, (1986) 4 SCC 268 and Jatendra Kumar v. State of Punjab,
(1985) 1 SCC 122.
14. In Gujarat State Dy. Executive Engineers' Association v. State of Gujarat, 1994 Supp
(2) SCC 591, the
Supreme Court examined the scope and intention of a waiting list. The observations are
quoted as below :
"How a waiting list 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 selections or competition was held. 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. Therefore, 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, then
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.
Appointment in future vacancies from waiting list prepared by the Commission should
be exception rather than the rule. It has many ramifications. 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. 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."
15. The Supreme Court in a number of decisions relied upon in Prem Singh and Ors. v.
Haryana State Electricity Board and Ors. (1996) 4 SCC 319 has held after following the
earlier decisions, that if the requisition and advertisement are for a certain number of
posts only, the State cannot make more appointments than the number of posts
advertised, even though it might have prepared a select list of more candidates.
16. In the present case, on a request made by the State Government, the selections were
held and a merit list for equal number of candidates was forwarded by the Commission.
In paragraphs 34 and 35 of writ petition, an averment has been made that about 108
vacancies continue to exist on account of non-joining of candidates who have already

been selected in Upper Grade, P.C.S. These vacancies relate to the same recruitment year
and arose before the select list could be finalised on 24.6.2000 and thus the petitioners,
who claimed to have secured marks, next to the selected candidates, had a right to be
considered for appointment on the said vacancies. In Shankarsan Dash v. Union of India
(supra) the Constitution Bench of Supreme Court found that the State Government is
under no legal duty to fill up all or any of the vacancies and, however, the State does not
have a licence to act in an arbitrary manner, and the decision not to fill up vacancies has
to be taken bona fide for appropriate reasons.
17. It is not the case of the State Government that the competent authority decided to
keep the vacancies unfilled or that there was any special contingency, or any policy
decision taken not to fill up these posts. In the same recruitment year. The decision was
taken on the ground of increasing number of writ petitions filed by the candidates of the
selected list for their appointments on the posts, which could not be filled or remained
vacant on account of reshuffling and legal difficulties faced in implementing the orders of
courts. These reasons, to my mind, are wholly unreasonable, extraneous to the object of
preparing waiting list, and are arbitrary. A candidate has a constitutional right under
Article 14 read with 16 of the Constitution of India to be considered for appointment on
the available vacancies after going through the process of selection. This right cannot be
defeated on the ground that some of candidates in some other selections have filed writ
petitions and challenging the number of vacancies, which could not be filled up for
various reasons ; or that it takes a long time, firstly in calculating the number of vacancies
and thereafter going through the process of selection. The selection for the recruitment to
Combined Lower Subordinate Services is not held every year. The accumulated
vacancies of several years are offered for appointment through the selection to be held by
the U. P. Public Service Commission. The next recruitment also takes long time. In the
present case, the Court informed that after the subject recruitment, no further selection
process has been initiated for appointments to the Lower Subordinate Services in U. P.
The candidates, next to the last person in the merit list, thus has a right to be considered
on the vacancies of the same year within period of the validity of the list. In the present
case, it has not been denied that some of the selectees out of the select list, which came to
be finalised on 24.6.2000, did not join, and, thus, the right of next to the last person in the
list cannot be defeated on the ground of difficulties faced by the State Government as
well as the U. P. Public Service Commission in implementation of orders passed in writ
petitions in respect of recruitment to other services, and for saving time in determination
of such litigation.
18. There is no object sought to be achieved by giving up preparation of waiting list. The
vacancies will remain unfilled for long period, whereas deserving candidates will be kept
waiting or take up other jobs. The U. P. Public Service Commission
shall have to bear avoidable cost of selections for the same vacancies afresh. The
candidates will either become overage or will have to again compete for the same
vacancies. It is thus, in the interest and benefit of candidates, as well as in public interest
to prepare a waiting list.

19. The contents of the impugned office memorandum speak for the state of affairs in the
State Government. The direction contained in paragraph 2 of the order states that correct
calculation of vacancies must be ascertained in respect of recruitment before sending the
requisition to the Commission and no change should be made in the number of vacancies
after the requisition has been sent. After the receipt of recommendation, the selected
candidates must be allowed to join and that appointment orders must be issued within
three months giving a maximum extension for one month in unavoidable circumstances.
These directions were issued when the offices in the State Government, in which the
vacancies arise, were found to be negligent in the past in calculating the number of
vacancies and in requesting the appointments made within the time. The decision of the
State Government for giving up the waiting list and reshuffling for reasons stated above
is thus wholly unjustified, unreasonable and arbitrary and amounts to violation of
petitioners' right under Article 14 read with 16 of the Constitution of India.
20. In Writ Petition No. 26913 of 2001, between Dharmendra Kumar Singh and Ors. and
State of U. P. and Ors. and Writ Petition No. 16899 of 2001, between Surendra Kumar
Pandey and Anr. and State of U. P. and Ors., the decision taken to give up waiting list in
office memorandum dated 15.11.1999 was not challenged and as such these writ petitions
were decided on the basis of the impugned office memorandum.
21. The office memorandum dated 15.11.1999 is applicable to all the services for which
selections are to be made by the Public Service Commission. These services are governed
by their respective service rules made under Article 309 of the
Constitution of India, and the office memorandum as such, cannot be allowed to
supersede all those rules with regard to the selection process unless these rules are
amended. Further, I find that the impugned office memorandum does not refer to or
supersede the earlier office memorandum dated 31.1.1994 providing for a waiting list to
be operative for a period of one year.
22. For the reasons aforesaid, the writ petitions are allowed and the decision taken by the
State Government in the office memorandum dated 15th November, 1999, to give up the
preparation of waiting list and reshuffling by U. P. Public Service Commission in respect
of selections to the posts in the State Government to be made by the U. P. Public Service
Commission is quashed ; with a direction to the U. P. Public Service Commission and the
State Government to prepare a waiting list in accordance with the office memorandum
dated 31.1.1994. A further direction is issued to the respondent to calculate the number of
vacancies which could not be filled up out of the original requisitioned vacancies and
remained vacant within one year, i.e., 24.6.2001 and to forward the names of the
candidates next to the last recommended candidate for appointment in Combined Lower
Subordinate Services Examination, 1998. The waiting list shall be prepared within a
period of two months and the appointment orders shall be issued within next one month.
23. The costs to be paid by the respondents to the petitioners are quantified at Rs. 5.000.

Jammu High Court

Darshan Singh And Ors. vs State Of J And K Through Chief Secy. ... on 8 April, 2004
Equivalent citations: 2005 (2) JKJ 232
Author: P Kohli
Bench: P Kohli
JUDGMENT
Permod Kohli, J.
1. The J&K Service Selection Board issued Advertisement Notice No. 01 of 1999 dated
9.3.1999 inviting applications from the eligible permanent residents of the State of
Jammu and Kashmir for the posts of teachers in District Kathua. Petitioners being
eligible, applied for the same and participate in the selection process held by the
Selection Committee constituted by the Selection Board. Select list of the candidates for
appointment to the posts of teachers is issued on 4.1.2002, which was published in local
newspaper namely Daily Excelsior (Anx-C). Alongwith the select list, waiting list was
also issued. As many as 165 candidates were listed in the Open Merit Category and 33
candidates in the waiting list for the said category. Separate list was issued for reserve
category. However, all the petitioners being candidates in the Open Merit Category, these
two lists are relevant for the purpose of present petition. Petitioners herein were unable to
find berth in the select list, however, their names have been reflected in the waiting list at
Serial Nos. 9, 10 and 11. It is the positive case of the petitioners that as many as eleven
candidates did not join the service and two candidates left the service after some time
having been selected and appointed in some other service. The candidates appearing at
Serial Nos. 10, 20, 30, 32, 40, 42, 98 and 120 did not submit their documents whereas
candidates appearing at Serial Nos. 27, 163 and 53 of the select list did not join on
appointment. In all, 11 candidates did not join from the select list. The authorities
operated waiting list upto Serial No. 8 as against 11 available vacancies due to nonjoining of the selectees. Petitioners are next in order of merit in the waiting list and they
being at Serial Nos. 9, 10, and 11, claim to be entitled to appointment against the
available vacancies. Petitioners on being informed of the availability of the vacancies and
operation of the waiting list to limited number of vacancies, approached the respondents
by various representations. The representations made by petitioners were duly
recommended by the Director School Education as also the Hon'ble Minister for
Education. Petitioners have also placed on record affidavits from some of the candidates,
who have not joined the service on appointment.
2. The State-respondent has filed detailed objections. Respondents in Para-F of the reply,
admitted that eight candidates in Open Merit Category did not join. In grounds, it is
further admitted that three more candidates who were appointed, also did not join. In
Para-J also, it is admitted that two candidates after joining, resigned pursuant to their
appointment as Accounts Assistants in the Finance Department. The respondents have

also admitted that the petitioners are in the waiting list at Serial Nos. 9, 10 and 11 i.e.
immediately after eight persons who have been appointed from the waiting list.
3. In view of the above admitted factual position, the only question that arises for
consideration is, whether the petitioners have any right to seek appointment being in the
waiting list against unfilled vacancies. The selection to the post in question is governed
and regulated by the J&K State Subordinate Services Recruitment Rules, 1992. Sub-rule
(vi) of Rule 10 of the aforesaid rules was amended in the year 1998 and following was
introduced: "The Board shall also finalise waiting list of 20% of the total number of
selected candidates and forward the same to the concerned department. The waiting list
shall remain in force for a period of one year from the date of its receipt or till a fresh
selection is drawn up by the Recruitment Board, whichever is earlier."
4. The aforesaid rule clearly envisage that a waiting list to be operated upon within a
period of one year or till the next selection whichever is earlier. Indisputedly, 11
candidates did not join after being selected/ appointed and two resigned after joining. As
far the vacancies that became available on resignation of the two candidates are
concerned, petitioners or for that matter any other candidate in the waiting list, have no
right to be considered for appointment against those vacancies. The said vacancies once
filled up and fallen vacant after the selectees/appointees resign, are required to be again
put to fresh selection. However, the waiting list is required to be operated upon in respect
to the vacancies fallen vacant, where the selectees did not join. It is admitted case of the
respondents that waiting list was operated upon and as many as eight candidates from the
waiting list have been appointed. The respondents have not shown any valid reason as to
why the waiting list was operated upon only for eight candidates as against 11 vacancies
available due to non-joining of selectees/appointees. Petitioners are admittedly next in the
order of merit in the waiting list and as many as three vacancies are still available against
which petitioners have had a claim.
5. Mrs. Neeru Goswami, Dy. AG appearing for respondents has placed reliance upon
State of Punjab v. Raghbir Chand Sharma and Anr., AIR 2001 SC 2900, K. Jayamohan v.
State of Kerla and Anr., AIR 1997 SC 2619 and Sanjoy Bhattacharjee v. Union of India
and Ors., AIR 1997 SC 2179.
6. This issue also came up for consideration in Prem Singh and Ors. v. Haryana State
Electricity Board and Ors. reported as (1996) 4 SCO 319, wherein it has been held:
"From the above discussion of the case law it becomes clear that the selection process by
way of requisition and advertisement can be started for clear vacancies but not for future
vacancies. If the requisition and advertisement are for a certain number of posts only the
State cannot make more appointments than the number of posts advertised, even though it
might have prepared a select list of more candidates. The State can deviate from the
advertisement and make appointments on posts falling vacant thereafter in exceptional
circumstances only or in an emergent situation and that too by taking a policy decision in
that behalf. Even when filling up of more posts than advertised is challenged the court

may not, while exercising its extraordinary jurisdiction, invalidate the excess
appointments and may mould the relief in such a manner as to strike a just balance
between the interest of the State and the interest of persons seeking public employment.
What relief should be granted in such cases would depend upon the facts and
circumstances of each case. In the present case, as against the 62 advertised posts the
Board made appointments on 138 posts. The selection process was started for 62 clear
vacancies and at that time anticipated vacancies were not taken into account. Therefore,
strictly speaking, The Board was not justified in making more than 62 appointments
pursuant to the advertisement published on 2-11-1991 and the selection process which
followed thereafter. But as the Board could have taken into account not only the actual
vacancies but also vacancies which were taken likely to arise because of retirement etc.
by the time the selection process was completed it would not be just and equitable to
invalidate all the appointments made on posts in excess of 62......"
7. I have considered the judgments referred to above by the parties. The case in hand is
clearly distinguishable. In the present case, there is specific provision for the waiting list,
which remains in force for period of one year. The obvious object, is to operate the said
list in the event of availability of vacancies due to non-joining of the candidates within
the said period. The vacancies were available within the period of one year due to nonjoining of the candidates. Therefore, respondents were under obligation to operate the
waiting list to the extent of availability of vacancies. As a matter of fact, respondents did
operate the waiting list but upto eight candidates. Why the three vacancies remained
unfilled despite availability of candidates on the waiting list, has not been indicated in the
reply. Mrs. Goswami has failed to satisfy the court on this count. Petitioners being next in
merit and the vacancies available, they have a right to be considered for appointment. It is
not the case of respondents that any decision has been taken not to appoint any person or
fill up the vacancies for any valid reason. Respondents cannot be permitted to deny
similar treatment to the petitioners as has been accorded to the other persons in the
waiting list particularly in view of the availability of the vacancies.
8. For what has been stated above, this petition is allowed. A direction is issued to
respondent-State to consider the petitioners for appointment against three available
vacancies due to non-joining of the candidates. Let appropriate orders be passed within a
period of three months from today.

Jammu High Court

Khurshid Ahmed vs State Of J&K And Ors on 8 August, 2013

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.

SWP no. 2223 OF 2011AND SWP 1067 OF 2012 AND SWP no. 2269
OF 2011
1. Khurshid Ahmed
2. Ruppali Phull
3. Abdul Rehman
Petitioners
1. State of J&K and ors
2. State of J&K and ors
3. State of J&K and ors
Respondent
!Mr.P. N. Raina, Sr. Advocate with Mr. J. A. Hamal, Advocate Mr. H. L.
Koul, Advocate Mr. Nitin Bhasin, Advocate
^Mr. Gagan Basotra, Sr. AAG Mr. F. A.Natnoo, Advocate
Honble Mr. Justice Bansi Lal Bhat, Judge
Date: 08.08.2013
:J U D G M E N T :
Since issue involved in all these three writ petitions is same, therefore, these writ
petitions are disposed of by a common Judgement.
SWP no. 2223/2011 The petitioners competed in the Combined Competitive Examination
in 2009 under Schedule Tribe category. First merit list was issued by respondent no. 3 on
25th March, 2011. Petitioners did not figure in the list of selected candidates, but figured
at serial no. 1 and 2 of what is customarily known as wait list. Thus they were next in
order of merit, after final selection cut off marks. Petitioners and others figuring in the
waiting list approached respondent no.2 with an application dated 29th September, 2011
requesting for information regarding consideration of candidates in the waiting list.
Respondent no. 2 supplied the information which revealed that 11 posts had fallen vacant
on account of non-joining / resignation apart from one more request for acceptance of
resignation of a candidate appointed under Schedule Tribe category as he had been
appointed to IAS and allotted Indian Forest Service. Out of these vacancies, in regard to
two posts belonging to Schedule Tribe category, petitioners are aggrieved of their

exclusion/ non-consideration from recommendation and appointment to the services at

the hands of respondents.
SWP no. 2269/2011 The petitioner competed in the Combined Competitive Examination,
2009 under RBA Category. Petitoner did not figure in the list of selected candidates,
though he was on tie with the last selected candidate with 1050 marks under RBA
category and now stands as first waiting under RBA category. It is contended that
respondents have provided information under right to Information Act to some aspiring
candidates for appointment under the waiting list that 11 vacancies have fallen vacant due
to non-joining/resignation of the selected candidates out of which one vacancy belongs to
RBA category. The grievance of the petitoner is that the waiting list has not been operated
by the respondents till date. It is further contended that one Mohd Farooq Shan, selected
under RBA category and figuring at serial No. 212 in the Annexure 1 of the notification
dated 10.02.2011, has not joined the service. Similarly one Satish Sharma figuring at
serial no. 125 in the aforesaid annexure and Shams Ul Haq figuring at serial no. 134 in
Annexure II of the Notification dated 10.02.2011, selected under RBA category, have
resigned after joining the service. Thus, petitioner being next in the order of merit after
the last selected candidates under RBA category has a right of consideration for selection
and appointment.
SWP no. 1067/2012.
The petitoner competed in the Combined Competitive Examination 2010 in the open
merit category. Result of Combined Competitive Examination 2010 was issued vide
Notification dated 02.09.2011, wherein petitioner figured at serial No. 270 having
obtained 1220 marks (Annexure I). Thereafter select list of 182 candidates was issued
vide Govt. Order No. GAD (Ser)/GEN/277/2009 dated 13.04.2010.Though 189 posts
were referred by respondent no. 3-Public Service Commission, but only 182 candidates
were selected/appointed and the remaining posts remained unfilled till date. It is
contended that last selected/appointed candidate in open merit category has obtained
1220 marks among the four candidates securing same marks i.e. 1220 marks. Out of the
four candidates in the open category, two candidates namely Sourav Prashar figuring at
serial No 169 and Jatinder Goswami figuring at serial no. 259 have been appointed. Thus
Petitioner figures at serial No. 1 or 2 of what is customarily known as wait list i.e. next in
order of merit after final selection cut off marks. Petitioner approached respondent no. 3
for her consideration against the availability of seven unfilled posts and also against two
posts which had fallen vacant due to the non-joining of two candidates, namely, Vijay
Kumar figuring at serial no. 24 under J&K Accounts (Gazetted Services) and Jatinder
Goswami figuring at serial No. 56 under Jammu and Kashmir Police (Gazetted) Services
from open merit category.
Respondent no. 3- has filed objections contesting the petition on the ground that under
SRO 387 of 2008, governing Jammu and Kashmir Combined Competitive Examination,
there is no provision for maintenance of a waiting list or for recommending candidates
against non- joining of the posts by the candidates; that it is for the Government to
inform the Commission about the candidates who have not joined and on specific request

from the Government to recommend the candidates against such posts. In regard to
interim direction to consider the claim of the petitioners for recommending their names to
respondents no. 1 and 2 against vacancies under Scheduled Tribe category having fallen
vacant due to the non-joining of the candidates, respondent no. 3 pleaded that the interim
direction had been conveyed to General Administration Department for initiating proper
action.
In SWP no. 2269 of 2011 respondent no. 2 has pleaded that it is the prerogative of the
appointing authority to take a decision on the operation or otherwise of the waiting list;
that there was no provision in the Combined Competitive Examination Rules for
preparation of the waiting list; that respondent no. 2 being the Cadre Controlling
Authority is not under an obligation to operate waiting list against vacancies having
occurred due to non-joining of selected candidates; that such vacancies are to be referred
to the Commission for being filled up through the conduct of subsequent examination. It
is further contended that no waiting list has been prepared by respondent no. 3 in the
instant case. Mr Gagan Basotra, learned AAG, filed the reply in SWP no.
2223/2011.Same was adopted in SWP no. 2269/2011 as well.
Heard rival sides and perused the record. Adverting to SWP no. 2223/2011 , the
petitioners therein competed in the Combined Competitive Examination 2009. They were
placed next to the selected candidates in order of merit i.e., immediately after the final
selection cut-off. Thus they figured at serial no. 1 and 2 of the wait list under Scheduled
Tribe category. One of the selected candidates namely Raj Kumar, who figured in the
select list of KAS Officers, was working as Munsiff Qazigund. He continued to work as
such and vacancy caused by his non-joining out of Scheduled Tribe category remained
unfilled. Another selected candidate namely Shahzad Choudhary requested for ab-initio
cancellation of his joining report as Deputy Superintendent of Police because he had
joined as Assistant Conservator of Forests. His joining report was permitted to be
cancelled. This resulted in occurring of vacancies. Petitioners have also referred to the
proceedings of Legislative Council where, in reply to a question on the floor of the
House, Government is stated to have expressed itself in favour of operating the waiting
list of KAS for the year 2009. The factual position noticed hereinabove has not been
disputed. The only question for consideration is whether respondents are bound to operate
the waiting list, recommend and appoint petitioners against the vacancies which occurred
on account of non-joining of the selected candidates under the Schedule Tribe category. It
is true that the General Administration Department, being the Cadre Controlling
Authority of KAS/KPS, has the prerogative to operate the merit list below cut-off marks.
However, such prerogative cannot be exercised arbitrarily, to the detriment of public
service and the career of candidates who may become ineligible for competing in the next
Combined Competitive Examination on account of being overaged. Interest of State as
also those of the candidates on the verge of becoming overage should be the main
consideration weighing with the authorities in making recommendations for filling up of
the vacancies which occurred on account of non-joining of selected candidates. Situation
is, however, different in case of those candidates who after joining submit resignation
thereby quitting the service for whatsoever reasons. Vacancies that occurred on account
of resignation of selected candidates after joining the services have necessarily to be

referred to Public Service Commission for being filled up through the next Combined
Competitive Examination. While it cannot be denied that the operation of waiting list
would create some problem on account of re-allocation of services of selected candidates
who may have undergone training for being inducted into services allotted to them, the
problem can be resolved by allocating left-over positions in the different services lying
vacant to the candidates recommended from the wait list.
In my considered opinion, absence of provision in the Recruitment Rules for maintaining
a wait list does not justify reference of vacancies, remaining unfilled on account of nonjoining of selected candidates, to Public Service Commission for being filled up by
initiating fresh process of Combined Competitive Examination. Such a course is
detrimental both for the service as well as for the candidates who barely fall short of the
cut-off marks. My view is forfeited by the judgment of Honble the Apex Court in B.S. N.
L. and ors v Abhishek Shukla and anr 2009 AIR SCW 3075.
In view of the aforesaid discussion, objections filed by respondents are over-ruled. Since
petitioner no. 1 has been selected in the J&K Combined Competitive Examination 201112, the writ petition has been dismissed to that extent. Thus only petitioner no.2 is found
entitled to relief claimed in the petition. Respondents 1 and 2 are directed to consider
filling up of the vacancy caused on account of non-joining of a selected candidate under
Schedule Tribe category and offer appointment to petitioner no.2 in the left-over
position in any available service.
Same ratio will apply to petitioners in the other two connected writ petitions.
In SWP no. 2269/2011 petitioner stands as first waiting under RBA category and, is
found entitled to consideration for appointment against the vacancy caused due to nonjoining of Mohd. Farooq Shan. In SWP no. 1067/2012 petitioner is found entitled to
consideration for being appointed either against the availability of seven unfilled posts or
against one of the two posts which had fallen vacant due to the non-joining of two
candidates namely Vijay Kumar and Jatinder Goswami.
Respondents no. 1 & 2 shall accord consideration to the appointment of petitioners
accordingly. Let this exercise be completed within a period of one month from the date a
copy of this order is made available to the respondents by the petitioners.
These writ petitions are disposed off accordingly. (Bansi Lal Bhat) Judge Jammu
08.08.2013 Bir

Waiting List Not Perennial Source Of Recruitment: Allahabad High Court

03 August, 2005
Allahabad High Court has ruled that a select/waiting list cannot be used as perennial
source of recruitment for filling up not advertised vacancies.
The candidate of select/waiting list has no vested right to be appointed against the
vacancy caused on account of resignation of selected candidate who after joining the post
in pursuance of such selection and shortly thereafter or during the life time of
select/waiting list resigns from service, the Court said.
The candidates of waiting list can be offered appointment only in case of selected
candidate do not join the post and life of waiting list still subsisting or waiting list
remains operative.
The ruling was given by a division bench comprising of Justice V M Sahai and Justice
Sabhajeet Yadav in a writ petition filed by Mr Arun Kumar Singh.
The petitioner had appeared in U P State Universities Centralized Services
examination,1996. The result of selection was declared after holding written examination
and interview on September 30, 1997. Against total 19 vacancies, 19 candidates were
declared successful for appointment and recommended by the Commission to the state
government on November 20,1997. The state government had issued the appointment
letters to the selected candidates on December 30,1997. Out of the candidates, two
candidates of general category had resigned from service on September 5,1998 and
December 2,1998. The petitioner's name could not find place in the main select list but he
was placed at serial no. two in the waiting list of general category candidates.
Being a candidate of general category, the petitioner made several representations for
appointment against the aforesaid vacancies as a result of which state government sent a
requisition on 26.7.2001 to the U P Public Service Commission seeking three names from
the waiting list. Two names were asked against the vacancies of general category on
account of resignation and one from Schedule Caste candidate due to non-joining of a
Schedule Caste candidate.
U P Public Service Commission declined to recommend any name from waiting list vide
letter dated 20.8.2001 on the ground that one year period of waiting list have been
expired inasmuch as the vacancy caused on account of resignation of selected candidate
even if so caused during the life time of waiting list, cannot be filled up from waiting list
as such vacancy would be fresh vacancy and to be carried forward for the next selection.
This was challenged in court by Mr Singh who filed the writ.
The bench found that the action of Commission in not recommending the name of
petitioner for appointment against the vacancy caused on account of resignation of two
candidates belonging to general category is fully justified on both the counts holding that

the process of selection is strictly linked with the number of vacancies advertised and or
included in the process of selection.
A select/waiting list has to be confined in making appointment only to the extent of
number of vacancies included in the process of selection. A select/waiting list stood
exhausted when all the vacancies filled in from the aforesaid list or the life of selecting
waiting list expired which ever may be earlier. Thus the select waiting list stood
exhausted in both the ways.
The court further held that the petitioner could not be held entitled for appointment
against one vacancy arising out of non-joining of one candidate of Scheduled Caste, as
such aforesaid vacancy could be filled up only from the candidates of Scheduled Caste
provided such candidate would have been available in the waiting list of Scheduled Caste
and requisition would have come within the life period of waiting list.

However one cannot generalised that waiting list can be valid for a period of one
year only.
The rules are different from State to State, Like for NPSC the waiting list is Valid
only for 6 months , while some other state service comissions have a waiting list
valid for one year and some recruitment board does'nt have specific time frame.
and the guahati high court does not specify waiting list validity time frame.
and thank you Sudhir Kumar while searching online for the answers to justify my
position i also found some valuable judgement/comments by the courts. here is one.
"provides for allotment from reserved list for the vacancy in the place of those who
have not joined duty, it cannot be strictly interpreted so as to exclude resultant
vacancies caused due to candidates joined and subsequently leave or resign."
"The question relating to right of a candidate to claim appointment out of waiting
list fell for consideration before Supreme Court and other Courts from time to time.
In Gujarat State Dy. Xen Association Vs State of Gujarat (1994 SCC (L&S)
1159 :: CDJ 1994 SC 569 :: 1994 (3) JT 559), the Supreme Court held as follows :8. .............. 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 then 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."
"Therefore, it will be evident that the persons, whose names are appearing in the
waiting list, though may not have any vested right to be appointed, but have a
limited right to claim appointment against the post, which were advertised pursuant
to which waiting list prepared and in case of non-joining of candidates or such
advertised post falls vacant because of other circumstances like death or
resignation."
"It is not in dispute that the reserved list (waiting list) is prepared and acted upon in
case of non-joining of selected candidates or who join duty but leave subsequently or
if the provisional selection of selected candidates is cancelled for any reason."

Punjab-Haryana High Court

Bijender Singh Etc. vs The State Of Haryana Etc. on 13 July, 1994
Equivalent citations: (1994) 108 PLR 1
Author: J L Gupta
Bench: A Bahri, A Bhan, J Gupta
JUDGMENT
Jawahar Lal Gupta, J.
1. The petitioners approached this Court with a prayer that "the waiting hit of Clerks
mentioned by the Subordinate Services Selection Board as a result of selection list
announced on 15.10.1989" for appointment to the posts of Clerks in different departments
in the state of Haryana be quashed. In response to the notice issued by the Motion Bench,
the respondents, viz. the State of Haryana and the Subordinate Services Selection Board
(hereinafter referred to as 'the Board') appeared and pointed out that they were acting in
conformity with the judgment of a Division Bench of this Court (in Sudesh Kumari v.
State of Haryana and Ors.), 1991 (1) R.S. J. 18, whereby it was directed that "till such
persons who are higher in merit are appointed, the selection list prepared on 15th October
1989 would not lapse irrespective of any instructions to the contrary issued by the State
of Haryana, if any." The Motion Bench heard the counsel for the parties. Their Lordships
even recorded the statement of Mr. M.S. Madan, the present Secretary of the Board. They
had certain reservations about the view expressed by the Division Bench. Consequently,
the Bench directed that the case be placed before a larger Bench "to reconsider the
decision rendered in Sudesh Kumari's case (supra)." This is how the matter has been
placed before us. A few facts may be noticed.
2. On July 22, 1987, the Board advertised "some posts of Clerks for various Haryana
Government Officers." Factually, the Board had received requisitions from different
Departments for a total of 662 posts. In pursuance to the advertisement, a large number of
candidates submitted their applications. After conducting the written test, the Board
selected a total of 5373 candidates on October 15, 1989. It recommended the names of
1692 candidates to different Departments. Certain persons, who were lower in merit were
actually appointed, while others, though higher in merit, were not appointed as the
department/s to which their names had been recommended were unable to accommodate
them. Some of the candidates, who had failed to get appointment approached this Court
through C.W.P. No. 8187 of 1990 (Sudesh Kumari v. State of Haryana and ors.). A
Division Bench of this Court accepted this writ petition vide judgment dated October 10,
1990. It, inter-alia, gave the following directions:- "By directing the Board at this stage to
recommend the names of the
petitioners and other similarly situated persons who are higher in merit and whose names
have been received back from the departments as they could not be appointed, would at
this juncture disturb the persons who have already been appointed in the other

departments, who are though lower in merit. We would not like to disturb such persons
who have been appointed in the other departments who are lower in merit. Under the
circumstances, we direct that from now onwards whenever a requisition is received from
any department for filling the posts of Clerks, all persons who are higher in merit as
compared to the last person who might have been appointed as a Clerk, till today on the
basis of the merit prepared on 15th October, 1989, shall be appointed first. Till such
persons who are higher in merit are appointed, the selection list prepared on 15th
October, 1989 would not lapse irrespective of any instructions to the contrary issued by
the State of Haryana, if any."
3. It appears that the decision in Sudesh Kumari's case (Supra) was followed in some
other cases also. As a result of the above noted directions, no posts of Clerks have been
advertised by the Board after July, 1987. The two petitioners (Petitioner No. 3 having
already withdrawn), who had been rejected by the Board, have approached this Court
with the prayer that the list prepared by the Board on October 15, 1989 be quashed. They
aver that the job opportunities available in the State of Haryana are "Nominal" and it is
likely that "by the time the waiting list is exhausted, they would be over-age and
ineligible to apply for the posts." According to the petitioners, the selection list prepared
by the Board cannot remain valid forever and has to be 'scrapped'. Otherwise, the waiting
list of 4000 candidates would last for a decade which would have the effect of depriving
various eligible persons of the chance to compete for the posts of Clerks. They also aver
that the list prepared by the Board was not fair. Persons, who had not applied for the posts
in accordance with the conditions of the advertisement, had been selected for the jobs on
account of extraneous considerations. Even those who had not appeared or had failed in
the written test had been selected on the recommendations of the politicians "then in
power" and "the candidates belonging to Meham and Sirsa Districts" were unduly
favoured. It has also been pointed out that the selections made by the Board for the posts
of Taxation inspectors were also arbitrary and an enquiry by the C.B.I. had been ordered
by their Lordships of the Supreme Court. They aver that the candidates, whose names are
not borne on the selection list had been recommended for appointment in the Excise and
Taxation Department for extraneous considerations. Such persons as were lower in merit
had been recommended for appointment to 'A' Grade Offices while those who were
higher in merit are still awaiting appointments. According to the petitioners, 207 posts
were actually available at the time of advertisement. As such, the number of selected
candidates including those on the waiting list could not have exceeded 300. However, the
Board had arbitrarily prepared a merit list of 5373 candidates which was not at all
justified or valid. Accordingly, the petitioners maintain that there is no justification for
the Board to maintain a waiting list of about 4000 candidates especially when about 1300
persons have already been appointed. They maintain that the action is violative of
Articles 14 and 16 of the Constitution of India.
4. On behalf of the respondents, a written statement has been filed by Mr. M.S. Madan,
the Secretary of the Board. It has been averred that "there was requisition of 662 posts of
Clerks, at the time of advertisement.... the Board made selection of 5373 candidates. The
selection was made beyond the advertised posts with material irregularity... The selection
made by the Board is patently illegal and not sustainable in the eyes of law." It has been

further averred that the decision given by this Court in Sudesh Kumari's case (Supra) is
binding on the respondents and as a result, the appointments have to be made out of the
selection list dated October 15, 1989. It has been admitted that "the anticipated 4000
vacancies are likely to be available in 10 years or so." By that time, the petitioners would
become over-age. It has also been averred that the "names of candidates were not
recommended to various Departments strictly in accordance with the merit prepared by
the then Board and many of the persons who were far below (in) the merit list i.e. at Sr.
No. 4645 were recommended for appointment, whereas the names of candidates, who
were among the first hundred were not sponsored which has created embarrassing
position for the Board. This pick and choose policy was resorted to by the Board through
its Secretary for political considerations. The only way out, out of this position is that
their names should be withdrawn and in their places the names of the candidates who are
higher in merit list should be recommended. The waiting list which has expired under
Govt. instructions Annexure P.2 be allowed to expire and the vacancies are read-vertised
giving opportunity to new candidates for appointments in Govt. Offices." It has also been
pointed out that "factual matter of the case was not canvassed before the Hon'ble Court at
the time of the arguments." The respondents admit that certain candidates as mentioned
by the petitioners, who had failed to qualify the test, had been recommended for
appointment by the Board to various departments. Various other irregularities have also
been pointed out. It has also been suggested that the Board was swayed by "Political
considerations." In this situation, it has been prayed that the writ petition be disposed of
keeping in view the legal and factual submissions made in the written statement.
5. C.M. Application No. 590 of 1994 was filed by 15 persons (Dilabag Singh and Ors.)
under Order 1 Rule 10 of the Code of Civil Procedure to implead them as respondents on
the ground that the petitions filed by them had already been accepted. CM. Application
No. 4644 of 1994 was also filed by these persons for permission to place on record a
short written statement. These applications were allowed.
6. In the written statement filed on behalf of the added respondents, it has been inter-alia
averred that persons, like the petitioners, whose claim had been considered and were not
included in the merit list have no locus standi to challenge the action of the respondents
in appointing persons beyond the number of posts which were available at the time of the
advertisement. It has been further averred that "all those persons in whose favour the
Division Bench judgment is there, are necessary parties" and in their absence no order to
their prejudice can be passed. The respondents further aver that on the petitioners' own
showing the merit list was valid upto October 15, 1990. On that date more than 6000
Clerks were, working on ad hoc basis or daily wages. If all these posts were filled up
from amongst the selected candidates, each one of the 5373 persons placed on the merit
list would have been appointed. However, the Haryana Government took a policy
decision to regularise the services of ad hoc appointments. As a result, the services of
more than 5000 Clerks were regularised with effect from January 1, 1991. Even in
respect of those Clerks, who had not completed the requisite period of two years' service
by December 31, 1990, a policy decision was taken that the services of all those ad hoc
employees who had completed more than two years service upto March 31, 1993 be
regularised. The respondents point out that the Clerks working on daily wages had

competed along with them, but were not selected. In spite of that, they were allowed to
continue in service and later on their services had been regularised. In case, their services
had been terminated, all the selected candidates would have been appointed. Relying on
the judgment of their Lordships of the Supreme Court in Piara Singh's case, as also in
S.L.Ps (C) Nos. 18354 and 20095 of 1991, die respondents aver that the selected
candidates have a right to be appointed. Reliance for this purpose has also been placed on
the instructions issued by the Chief Secretary to the Government of Haryana vide letter
dated May 17, 1976. The respondents also aver that the writ petition has, in fact, been
filed at the instance of the Chairman of the Subordinate Services Selection Board.
According to them, the selection had been challenged and the writ petition was dismissed
by a speaking order. It has also been averred that the Board has been intentionally
avoiding to implement the judgment of the Division Bench in Sudesh Kumari's case
(supra). According to the respondents, requirements for a number of posts of Clerks had
been received by the Board and in spite of the directions in Sudesh Kumari's case
(Supra), it did not forward the name of the selected candidates. They also aver that the
decision of the Division Bench is not only legal but also just and fair. Accordingly, the
respondents pray that the writ petition be dismissed with costs.
7. We have heard learned counsel for the parties. The main questions that arise for
consideration are :(i) Could the Board select 5373 candidates when it had a requisition for only 662 posts?
(ii) Do the selected candidates have an indefeasible right to be appointed?
(iii) Are the directions given by the Division Bench in Sudesh Kumari's case (Supra)
particularly to the effect that "till such persons who are higher in merit are appointed, the
selection list prepared on 15th October, 1989 would not lapse..." in conformity with the
provisions of Articles 14 and 16 of the Constitution of India ?
8. Re. Question No. (i)
Article 16 is an instance of the general rule of equality laid down in Article 14 of the
Constitution of India. It guarantees equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State. While the State has
a right to lay down qualifications and conditions of eligibility which have a reasonable
relation with the requirements of the posts, it is not entitled to make appointments in a
''cloistered manner" and to recruit people without giving the eligible candidates a chance
to apply and be considered on merits. It is in order to effectuate the guarantee contained
in Article 16 that the State issues an advertisement and gives a public notice regarding the
availability of posts. It is an invitation to the eligible candidates to submit their
applications. To be effective and in consonance with the guarantee contained in Article

16, the advertisement should be precise. Normally, the number of posts should be
specifically mentioned. The qualifications and conditions of eligibility should be clearly
spelt out. Vagueness can lead to confusion and complications. It should avoided.
In the present case, it is established on the record that the Board had received requisitions
for a total of 662 posts (which may have included even die vacancies anticipated in a
year) from different departments in the State. It advertised the posts on July 22, 1987.
The closing date for receipt of applications was August 22, 1987. The candidates had to
fulfill the conditions of eligibility regarding qualifications and age by the prescribed date.
Consequently, all such persons, who had not attained the prescribed age or qualified the
prescribed examination before the last date for submission of applications were not
eligible to apply. As such, only those who fulfilled the conditions of eligibility were
entitled to submit their applications and be considered on merits. Those who acquired the
requisite qualifications after the prescribed date or had not attained the prescribed age by
then had to wait till such time as another advertisement was issued.
In spite of the fact that the Board had received requisitions for only 662 posts, it selected
5373 candidates. If all these selected candidates were to be appointed, all those persons,
who may have become eligible by the date of the availability of the posts or after the last
date for submission of applications, would be deprived of the chance to apply in respect
of more than 4500 posts. Such persons would get no chance to be considered against the
posts under the State. The guarantee contained in Article 16 in respect of these posts
would be clearly violated.
Mr. R.K. Malik, learned counsel for the added respondents, contended that the rights of
the petitioners have not been adversely affected. He submitted that the petitioners had
actually applied for the posts and in spite of the fact that the Board had selected 5373
candidates, their names were not included 5373 candidates, their names were not
included in the merit lists. He consequently submitted that the petitioners had no locus
standi to challenge the selection. We are unable to accept this contention. Firstly, the right
of a candidate to be considered for appointment to a post under the State is not
extinguished by a failure on one occasion. Those who have failed in their first attempt
can do better on the second occasion. If a chance is due to them, it cannot be denied.
Secondly, the State is bound to act in a manner that the guarantee under Article 16 is not
violated. If the State proceeds to advertise certain posts and it is established that on the
date of the advertisement only 662 posts were available or could have been anticipated
within a reasonable time, it cannot select candidates to fill vacancies far in excess of
those which have been actually advertised. This rule has been reiterated by the Apex
Court in two recent pronouncements. In Hoshiar Singh v. State of Haryana, and Ors., J.T.
1993 (5) S.C. 63 (in paragraph 10), it was been held as under:- " .... The appointment on
the additional posts on the basis of such selection and recommendation would deprive
candidates who were not eligible for appointment to the post on the last date for
submission of applications mentioned in the advertisement and who became eligible for
appointment thereafter, of the opportunity of being considered for appointment on the
additional posts because if the said additional posts are advertised subsequently those
who become eligible for appointment would be entitled to apply for the same. The High

Court was, therefore, right in holding that the selection of 19 persons by the Board even
though the requisition was for 8 posts only, was not legally sustainable."
Similarly, in State of Bihar v. Madam Mohan Singh, 1993 (5) S.L.R. 601, it has been
observed that if a selection list "has to be kept subsisting for the purpose of filling up
other vacancies also that would naturally amount to deprivation of rights of other
candidates who would have become eligible subsequent to the said advertisement and
selection process." (Paragraph 7). Further more, we are also of the view that the Board
has been constituted by the State Government under Article 309 of the Constitution. It is
charged with the function of selection and recommending candidates for appointment
against posts for which a requisition is sent to it. Its function is to select and recommend
candidates so as to enable the competent authority to make appointments against the
posts for which a requisition had been sent. It has no jurisdiction or power to enlarge the
number of posts or recommend candidates far in excess of the posts for which a
requisition has been placed before it. Normally, while sending a requisition, the
departments of the Government would keep in view the actual number of posts available
with them as also the vacancies which may be anticipated. For this purpose, instructions
have been issued by the Government vide its letter dated January 20, 1988, wherein the
extent to which the Board can prepare the waiting list has been specified. It has also been
provided that the main list as well as the waiting list shall remain valid only for a period
of one year. Thereafter, the list would be scrapped and "if any further demand is received
by the Board, it would process the matter afresh and make further recommendations." In
the present case, the Board acted in total disregard of the instructions issued by the
Government when it proceeded to prepare a merit list of S373 candidates.
Accordingly, we answer the first question in the negative and hold that the selecting
agency cannot select candidates far in excess of the posts available on the date of the
advertisement. Of course, a small percentage of candidates or as may be desired by the
Government can be kept on the waiting list so that in the event of some candidates not
joining the posts or being found unsuitable on verification of their antecedents or on
physical examination, the next in order of merit may be made available. However, a
whole-sale departure from the number of posts advertised by the Board is not at all
permissible.
9. Re. Question No. (ii)
In our country, poverty stalks the land. A majority of people live below the poverty line.
A large number of educated youth are unemployed. Whatever be the level of posts, an
advertisement attracts a large number of applications. The applicants compete. Those
who are selected are entitled to entertain an expectation that they would be appointed. In
the very nature of things, such persons as are found suitable for appointments should be
appointed. The advertised posts should be filled up in the order of merit determined by
the selecting agency. This is, of course, subject to the right of the employer to determine
the suitability of the candidates on verification of their antecedents and physical
examination etc. In the normal course, if all conditions of eligibility etc. are fulfilled the

selected candidates should be appointed in order of their merit. A departure from the
merit list can be rarely permitted, if it is justified on good grounds. However, if the State
feels that it does not need to employ the selected candidates or that the norms adopted by
the selecting agency are not just and fair, it can refuse to make appointments. In such an
event, the selected candidates will not be entitled to claim that they have an indefeasible
right to be appointed.
In the present case, requisitions for 662 posts had been received by the Board. The Board
could have selected 662 candidates or a few more to cater for unforeseen circumstances.
However, it actually selected 5373 candidates, viz. 4711 in excess of the posts for which
requisitions had been submitted to it. This was grossly unfair. In such a situation, the
candidates selected in excess of the posts available at the time of the advertisement
cannot claim that they bad an indefeasible right to be appointed. The rule in this behalf
was initially enunciated by their Lordships of the Supreme Court in State of Haryana v.
Subhash Chander Marwaha, 1974 (3) S.C.C. 220, when their Lordships held as under:".... that the mere entry in this list of the name of candidate does not give him the right to
be appointed. The advertisement that there are 15 vacancies to be filled does not also give
him a right to be appointed. It may happen that the Government for. financial or other
administrative reasons may not fill up any vacancies. In such a case the candidates, even
the first in the list, will not have a right to be appointed. The list is merely to help the
State Government in making the appointments showing which candidates have the
minimum qualifications under the Rules. The stage for selection for appointment comes
thereafter...."
The above rule thereafter was reiterated in Neelima Shangla v. State of Haryana, 1986 (4)
S.C.C. 268, in the following words:" It is not correct to say that if a number of vacancies are notified for appointment and
adequate number of candidates are found fit, the successful candidates acquire an
indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the
notification merely amounts to an invitation to qualified candidates to apply for
recruitment and on their selection they do not acquire any right to the post. Unless the
relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any
of the vacancies. However, it does not mean that the State has the licence of acting in an
arbitrary manner. The decision not to fill up the, vacancies has to be taken bona fide for
appropriate reasons. And if the vacancies or any, of them are filled, the State is bound to
respect the comparative merit of the candidates, as reflected at the recruitment test, no
discrimination can be permitted. This correct position has been consistently followed by
this Court, and we do not find any discordant note in the decision in State of Haryana v.
Subhash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v.
State of Punjab."
This view has been reiterated in two recent pronouncements of their Lordships of the
Supreme Court in Shankarsan Dash v. Union of India, 1991(2) S.L.R. 779 and Sabita
Prasad and Ors. v. State of Bihar and Ors., 1992 (3) Scale 361.

Accordingly, we hold that the selected candidates do not get any indefeasible right to be
appointed.
10. Re. Question No. (iv)
This brings us to the third question, which relates to the correctness of the view takes by a
Division Bench of this Court in Sudesh Kumari's case. The precise grievance made by the
petitioners was that while giving appointments, persons who were higher in merit had
been ignored white candidates lower in merit had been appointed. The factual position
was not controverted of behalf of the respondents. It was admitted that "six candidates
lower in merit have been appointed by other departments, whereas the petitioners, who
were higher in merit, have not been given appointments by the department, where the
tunnies of the petitioners were, recommended and the names have been sent back to the
Board." In the background of this factual position it was held that "once there is a joint
selection and one common merit is prepared certainly persons higher in merit have a prior
right of appointment than the person's lower in merit... If that is not done, it will be a
clear violation of the provisions of Articles 14 and 16 of the Constitution of India." In
principle, there can be no dispute regarding the view expressed by the Bench. However,
the Bench proceeded to give the directions, as noticed above. It directed the State to make
appointments from the list till all candidates who were higher in merit were appointed. It
was held that the merit list shall not lapse. The direct consequence is that the State was
precluded from advertising the posts.
Are these directions in conformity with the law ?
On behalf of the petitioners, as also on behalf of the State of Haryana and the Board, it
has been contended that these directions are totally violative of Articles 14 and 16 of the
Constitution of India. Learned Counsel for the added respondents, however, contest this
claim. Mr. B.R. Gupta, who appeared for one of the added respondents, submitted that he
was at Sr. No. 64 in the merit list and has yet not been appointed. Mr. R.K. Malik,
however, submitted that, in fact, the directions given by the Bench were just and fair,
After hearing the learned counsel for the parties, we find that full facts had not been
brought to the notice of the Bench in Sudesh Kumari's case. In a perusal of the judgment,
we find that neither the exact number of posts for which a requisition had been placed
with the Board nor the number of persons whose names had been included in the merit
list were specifically pointed out to the Bench. It was only mentioned that the requisition
was for more than 1000 posts. This was factually not correct. In this situation, pointed
attention of the Bench was not drawn to the fact that the Board had prepared a merit list
in violation of the instructions of the Government and far in excess of the number of
posts for which a requisition had been sent to it. It is thus apparent that the parties had not
disclosed the correct facts to the Court and as a result the Bench was persuaded to give

the above noted directions. Since the factual position had not been correctly brought to
the notice of the Court, the matter has to be examined afresh.
Factually, it has been averred in the affidavit filed on behalf of Respondents Nos. 1 and 2
that "in all there was a requisition of 662 posts of Clerks, at the time, of advertisement"
and that "the Board made selection of 5373 candidates."
This being so, we are of the view that the Board had erred in selecting 5373 candidates.
In our view, the Board had to make selection in accordance with the instructions issued
by the Government and for the posts for which a requisition had been sent to it. It could
have prepared a waiting list only in conformity with the instructions issued by the
Government. It failed to do so. As already held, the Board was not competent to make
selection in excess of the prescribed number. Such a selection conferred no right on the
persons, whose names had been included in the merit list. Probably, if these facts had
been brought to the notice of the Bench, it would not have given the aforesaid directions.
It is true that a person higher in merit has a better right to be considered for appointment
than those, lower than him. In this context, the observation of the Bench that the action of
the respondents was violative of Articles 14 and 16 of the Constitution is correct.
However, in the peculiar facts of this case, it appears to us that when the Board makes a
departure from the merit list and unjustifiably ignores persons who are higher in merit, its
action is questionable and should be set aside. The appointment of a person, who is lower
in merit in preference to those higher than him being violative of Articles 14 and 16 of
the Constitution should be quashed. Instead of doing this, the Bench proceeded to give
the aforesaid directions. The result was that the rights of a large number of candidates,
who may have become eligible subsequent to the advertisement of the posts had been
curtailed for years to come. As pointed out by the respondents, the merit list prepared by
the Board would last for another decade. During this long period, innumerable eligible
candidates would be deprived of their rights of being considered for appointment to the
posts of Clerks. This would be totally violative of their rights under Articles 14 and 16 of
the Constitution.
Consequently, we hold that the directions were obtained by the petitioners in that case
without disclosing the full facts to the Court and in the peculiar facts of this case, these
directions cannot be sustained. These are violative of the rights of the petitioners and a
large number of other persons, who had not been given any chance to bring the correct
facts to the notice of the Court. As a result, respondents Nos. 1 and 2 shall not be bound
by these directions.
11. Mr. Malik, appearing for the added respondents, however, submitted that, in fact,
about 5000 vacancies were available and had been actually occupied by persons, who had
been appointed on ad hoc basis. He further submitted that in pursuance to the directions
in Piara Singh's case and the various policy decisions taken by the State Government,
their services had been regularised.

12. We are unable to accept this contention. The regularisation of services was ordered in
accordance with the judgment of the Court and the policy decisions taken by the Govt.
The validity of these decisions having not been challenged, the very basis of the argument
is non-existent. Secondly, even if it is assumed that the posts were available, we are of the
view, as already observed, that the Board could have made selection only in respect of the
posts for which a requisition had been sent to it. It had no jurisdiction to prepare a merit
list in violation of the instructions of the Government or the requisition sent to it. The
action of the Board being without jurisdiction, the added respondents can derive no
advantage from the fact of availability of posts. Secondly, the ad hoc employees are a
class apart. The added respondents can claim no right in regard to those posts. Thirdly, in
view of our finding that mere selection gives no right, the availability of posts will not
entitle the added respondents to claim that the directions given by the Division Bench
should be enforced.
13. Mr. Malik also contended that no order to the prejudice of persons, who are not
parties to this case, can be passed by this Bench. As a normal rule, it is correct that no
order to the prejudice of a person can be passed without hearing him. However, the
peculiar position in the present case is that the Board prepared a merit list in excess of the
posts which were available at the relevant time. The prayer of the petitioners is that the
merit list which is now being treated as a waiting list deserves to be scrapped in view of
the instructions issued by the Government. We have already held that the Board could not
have prepared a merit list of 5373 candidates and that the selected persons have no in
defeasible right to be appointed. Besides that, a reference to the instructions issued by the
Government shows that at the expiry of one year from the date of recommendation, the
list automatically lapses. The validity of these instructions i has not even been questioned
before us. In this situation, it is apparent that the list had automatically lapsed on October
9, 1990. That being so, we are merely enunciating the position of law. Still further, the
view point of the selected candidates has been duly represented before us. Accordingly,
we are of the opinion that the writ petition cannot be dismissed on the ground that,
necessary parties have not been impleaded. The objection raised by Mr. Malik is,
accordingly, rejected.
14. It was also submitted by Mr. Malik that some of the selected candidates have filed
petitions which have been allowed by this Court. Learned Counsel, however, did not give
reference of any particular case or decision. Assuming that the directions similar to those
in Sudesh Kumari's case were given, we are of the opinion that the parties having not
disclosed full facts to the Court and the directions being in violation of Articles 14 and 16
of the Constitution, would not be binding on respondents Nos. 1 and 2, in this case.
15. Mr. B.R. Gupta, counsel for one of the added respondents, submitted that the
applicant had not been appointed in spite of the fact that he had been placed at No. 64 in
the merit list. If true, it is grossly unfair.
16. Before parting with the judgment, we are constrained to express our dismay and
displeasure at the manner in which the Board as it existed in the year 1989 had acted. It

has been pointed out to us that the Board not only made selections in excess of the
number of posts for which a requisition was placed with it, but it even included and
recommended names of candidates "who had not qualified the written test...." Instances
have been quoted to show that the recommendations of the Board had "political
overtones." It has also been pointed out that the names of certain candidates appear at
more than one place in the merit list. Names of candidates who had not "even qualified
the written test were recommended intentionally to the highly prized department i.e. the
Excise and Taxation Department under political considerations."
17. We cannot do better than notice what their Lordships of the Apex Court observed in a
somewhat similar situation while dealing with the selection of Taxation Inspector made
by the Haryana Subordinate Service Selection Board in Krishan Yadav and Anr. v. State
of Haryana and Ors. (Civil Appeal Nos. 726 and 727 of 1993). Their Lordships said that
"fraud has reached its crescendo. Deeds as foul as these are inconceivable much less
could be perpetrated." Their Lordships were further pleased to observe as under:" It is highly regrettable that the holders of public offices both big and small have
forgotten that the offices entrusted to them are sacred trust. Such offices are meant for use
and not abuse. From a Minister to a menial everyone has been dishonest to gain undue
advantages. The whole examination and the interview have turned out to be farcical
exhibiting base character of those who have been responsible for this sordid episode. It
shocks our conscience to come across such a systematic fraud."
Almost similar is the position in this case.
18. Tsar Nicholas of Russia once said, "I don't rule Russia; ten thousand Clerks do." In
India we support the largest bureaucracy in the world. The salary bill for Union
Government employees alone is more than 15,000 crores per annum. Similar is the,
position in various States. It is thus of paramount importance that all bodies like the
Public Service Commissions and the Selection Board perform their duties to the best of
their ability without fear or favour, affection or ill and select the best persons to man the
civil posts on consideration of merit alone. Each citizen has an interest in the selection.
The persons entrusted with this job must 'use' their position to select the best and not
'abuse' it. Administrative reforms must begin with the selection of proper persons for the
Selection Boards and the Service Commissions. Only then it can be possible for us to
make some headway in facing the problems of inefficiency and corruption in the
administration. Members of these bodies should prefer national interest to their own. We
hope and trust that the successor Boards shall not do what was done in 1989.
19. Having considered the matter and keeping in view the peculiar facts of this case, we
hold that

i) The Selection Board cannot make the selection in excess of the number of posts for
which a requisition has been placed before it. The waiting list prepared by the Board has
to be confined to the number prescribed by the Government.
ii) The selected candidates do not have any indefeasible right to be appointed to the posts
for which they have been selected.
iii) The directions given by the Bench in Sudesh Kumari's case particularly to the effect
that the selection list prepared on October 15, 1989 would not lapse are not in conformity
with law.
iv) The respondent-State of Haryana would examine the cases of persons, who were
appointed even though they had not attained the requisite percentage of marks for
inclusion in the merit list and were not within the number of posts for which a requisition
had been sent to the Board. It would pass orders in accordance with law.
v) The list prepared by the Board on October 15, 1989 was valid for a period of one year.
If a candidate whose name appeared upto Sr. No. 662 has not been appointed so far, the
State shall consider his claim and appoint him. All vacancies arising from October 15,
1990 onwards shall be readvertised and recruitment against those vacancies shall be made
from amongst the selected candidates. The writ petition is allowed in the above terms. In the circumstances of the case, there
will be no order as to costs.

Rajiv Kumar And Others vs State Of Punjab And Another on 25 March, 2013
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 8307 of 2012
Date of Decision : 25.3.2013
Rajiv Kumar and others ..... Petitioners Versus
State of Punjab and another ..... Respondents CORAM: HON'BLE MR. JUSTICE
AUGUSTINE GEORGE MASIH Present:- Mr. K.S. Dadwal, Advocate, for the
petitioners. Ms. Sudeepti Sharma, Deputy Advocate General, Punjab. AUGUSTINE
GEORGE MASIH, J. (ORAL)
Petitioners have approached this Court praying for quashing of the speaking order dated
17.2.2011 (Annexure-P-8), passed by the Director, Health Services (Family Welfare),
Punjab, vide which the claim of the petitioners for appointment to the post of Multi
Purpose Health Workers (Male) general category, stands rejected.
It is the contention of the counsel for the petitioners that the speaking order, which has
been passed by the respondents asserting that there was no post against which the
petitioners can be appointed, is factually incorrect and in support of this contention,
counsel for the petitioners has referred to the notings on the file of the department
(Annexures-P10 and P- 13). On the basis of these notings, it has been asserted that the
posts being available, petitioners are entitled to be considered for appointment to the post
of Multi Purpose Health Worker (Male) general category. Referring to the noting dated
17.1.2012, which is a part of Annexure-P-13, it is contended that CWP No. 8307 of 2012
-2- there was a decision taken to issue appointment letters to the petitioners, but
subsequently the claim of the petitioners has now been rejected only on the ground of
being 'too late' for granting the appointment letters. This counsel for the petitioners
contends cannot be a ground to deny the petitioners their demand of appointment when
all through they have been asserting their right for appointment to the post of Multi
Purpose Health Worker and the respondents have also been considering the claim of the
petitioners for such benefit. He accordingly contends that the writ petition deserves to be
allowed. On the other hand, counsel for respondents has made strenuous efforts to assert
that the claim of the petitioners is belated and, therefore, the benefit, which has been
claimed by the petitioners, cannot be granted to them. I have considered the submissions
made by the counsel for the parties and with their assistance have gone through the
records of the case. An advertisement was issued by the respondent-department for filling
up 400 posts of Multi Purpose Health Workers, out of which 200 were kept for general
category. The names of the petitioners figure at Serial No. 211 to 214 and obviously are
in the waiting list. First 200 candidates were offered appointment on 18.9.2007. Out of
these 200 candidates, only 186 persons joined, leaving 14 posts vacant. Advertisement

dated 18.9.2008 (Annexure-P- 3) was issued by the respondents, which was a final notice
to the candidates, who have been issued appointment letters, calling upon the candidates
who had been issued appointment letters to join within a period of 15 days, failing which
their candidature would be treated to be cancelled and posts would be filled up from the
candidates next in the waiting list. CWP No. 8307 of 2012 -3- Three candidates submitted
their joining report within the prescribed period. One post was kept reserved for the
candidate who was behind the bar and for remaining ten posts, candidates in the waiting
list of general category i.e. Serial No. 201 to 210 were issued appointment letters on
13.11.2008. The claim of the petitioners for appointment was rejected by the Director,
Health and Family Welfare, Punjab-respondent No. 2, vide order dated 17.2.2011
(Annexure-P-8) on the ground that the name of the petitioners figure at Serial No. 211 to
214 of the merit list.
On re-appraisal of the vacancy position, it came to light that there were still vacancies
available, against which further candidates from the waiting list could be appointed.
Petitioners submitted representation dated 16.3.2011 (Annexure-P-9) to the Principal
Secretary, Health Services and Family Welfare, Punjab. This was down marked. In
response thereto, Director, Family and Health Family, Punjab, vide letter dated 21.7.2011
(Annexure-P- 10), addressed to the Principal Secretary to Government of Punjab, Health
and Family Welfare Department-respondent No. 1, admitted that four posts of general
category were lying vacant, against which petitioners could be considered for
appointment to the post of Multi Purpose Health Worker (Male) general category. Their
claim was duly considered by the Government as is apparent from the notings, copy of
which has been appended as Annexure-P-13 with the petition and thereafter, a decision
was taken to issue appointment letters to the petitioners on 16/17.1.2012. The matter was
further considered, but ultimately, vide order dated 1/2.2.2012, as per the noting sheet,
the proposal was not accepted on the ground that it was 'too late'. CWP No. 8307 of 2012
-4- This action of the respondents cannot be accepted, especially when all throughthe
petitioners have been asserting their claim and the matter has been under active
consideration with the respondents.
An assertion has been made on behalf of respondents that the waiting list could not be
acted upon in the light of the instructions dated 15.5.2000, which fix the life of the
waiting list for six months. But perusal of the notings would indicate that these
instructions stand withdrawn, vide instructions dated 20.8.2008. If that be so, ground for
rejecting the claim of the petitioners on the ground of delay, which is not attributed to the
petitioners, cannot be sustained. As a matter of fact, if we read the noting sheet as finds
mention at pages 98 and 99 of the paper-book, what has been recorded is that after the
withdrawal of the instructions dated 15.5.2000, vide instructions dated 20.8.2008, the
general category candidates were required to be issued appointment letters in the year
2008 itself. The delay, therefore, as a ground for non-acceptance of the claim of the
petitioners, cannot be sustained as the same is not attributable to the petitioners.
In view of the above, the present writ petition is allowed. The impugned speaking
order dated 17.2.2011 (Annexure-P-8) is hereby quashed. Directions are issued to
the respondents to issue appointment letters to the petitioners, who are admittedly

next in the waiting list, within a period of one month from the date of receipt of
certified copy of this order. Petitioners shall not be entitled to financial benefits, as
has been stated by the counsel for the petitioners on instructions from the
petitioners, but shall be entitled to other CWP No. 8307 of 2012 -5- consequential
benefits, including fixation of pay and seniority with effect from the date decision
was taken to issue appointment letters to the petitioners i.e. 17.1.2012.
(AUGUSTINE GEORGE MASIH)
JUDGE
25.3.2013
sjks

Rajasthan High Court

Ghanshyam vs State Of Raj. And Ors. on 7 May, 2008
Author: G K Vyas
Bench: G K Vyas
ORDER
Gopal Krishan Vyas, J.
1. Mr.Narpat Singh, for the petitioner. Mr.B.L.Tiwari, for the State. In this writ petition,
petitioner is claiming direction to the respondent No. 3 to appoint him as Constable with
all consequential benefits.
2. According to the facts narrated in the writ petition, in pursuance of advertisement
issued by respondent No. 2 on 18/1/2003 for direct recruitment on the post of Constable
in various districts of State of Rajasthan, the petitioner applied for the post of Constable
in Bikaner District for which 62 posts were advertised. Out of 62 posts advertised for
Bikaner District, 51 vacancies were for general category and remaining 11 vacancies
were reserved for other backward classes (OBC). The petitioner was possessing requisite
qualification for the post of Constable, and belongs to OBC Category, therefore, he was
called for appearing in the written test which was held on 20/4/2003 in which he was
declared successful. Consequently, he was called for physical test and interview vide call
letter No. 397. The petitioner participated in the physical test held on 12/6/2003 and
thereafter, appeared before the Selection Committee to face the interview, in which also
he was declared successful.
3. After the aforesaid selection process, respondents issued appointment letters to the
successful candidates but petitioner was not given appointment. Upon inquiry, petitioner
came to know that his name is at serial No. 1 in the waiting list. According to the
petitioner, one Prakash Ram son of Heera Ram Vishnoi, who was provided appointed
under the OBC category left the job upon his selection on the post of Assistant SubInspector, therefore, one post of Constable has fallen vacant in the Department. On
coming to know of this fact of leaving job by one Prakash Ram, petitioner made a
representation to the respondents and made a request to provide him appointment but
nothing was done.
4. It is submitted by the petitioner that two candidates belonging to general category, who
were also in waiting list, were given appointment on account of availability of two posts
due to non-joining of two persons from the main list. In these circumstances, when
petitioner was not provided appointment on account of leaving job by one Prakash Ram,
he preferred the instant writ petition.

5. It is vehemently argued by the learned Counsel for the petitioner that the purpose of
waiting list is to provide appointment to a candidate from the waiting list in the event of
availability of post during currency of the waiting list. Admittedly, the currency of
waiting list is one year and one post has fallen vacant due to leaving job by one Prakash
Ram on being selected on the post of Assistant sub-Inspector, but against that vacancy
petitioner has not been provided appointment. According to petitioner, the inaction on the
part of the respondents in not providing appointment to the petitioner against the said
vacancy is illegal, and violative of Article 14 and 16 of the Constitution of India.
6. It is also vehemently argued by learned Counsel for the petitioner that when post under
OBC Category was available and petitioner's name was at serial No. 1 in the waiting list
then respondents ought to have given appointment to the petitioner, more particularly
when two persons from the waiting list of general category were provided appointment
on account of nonjoining of two candidates of main list. Therefore, it is urged that action
of the respondents is illegal and discriminatory and has no foundation to stand before eye
of law.
7. In reply, it is contended by the learned Counsel for the respondents that after final
selection, all the posts of OBC Category were filled in. Later on, one Prakash Ram, who
was appointed as Constable in pursuance of same advertisement, left the job after seven
months after his selection to the post of Assistant Sub-Inspector and in view of the
circular issued by the Director General of Police, Rajasthan, Jaipur, petitioner cannot
claim appointment as a matter of right on the ground that his name was at serial No. 1 in
the waiting list. According to the respondents, the post fallen vacant on account of
leaving job by Prakash Ram cannot be treated to be a vacant post under the same
advertisement because according to the Rules, the said post is required to be filled in the
next recruitment year. The petitioner is only entitled for appointment in the event of nonjoining of any selected candidate or on the basis of ineligibility assigned to any candidate
of main list. But, post falling vacant on account of leaving the job by Prakash Ram, who
joined as Constable pursuant to his selection in terms of advertisement in question cannot
be utilized to be filled up from the waiting list. It is also submitted that now after lapse of
one year, the waiting list does not survive and vacancy which has fallen vacant due to
leaving the job by Prakash Ram is countable for the next recruitment process. Therefore,
petitioner cannot claim appointment as a matter of right.
8. I have considered the rival submissions. Admittedly, in this case petitioner's name was
at serial No. 1 in the waiting list and one Prakash Ram left the job after his selection on
the post of Assistant Sub-Inspector during the currency of wait list, therefore, petitioner
was very much eligible to get appointment against the post vacated by Prakash Ram but
due to inaction on the part of respondents so also due to non-consideration of case of
petitioner for providing appointment against the said vacancy, which has fallen vacant on
leaving job by Prakash Ram. The petitioner was deprived of right of consideration for
appointment on the post of Constable, therefore, in my opinion, petitioner was wrongly
denied appointment knowingly well that petitioner was at serial No. 1 in the wait list and
during the currency of wait list, one post of Constable in OBC Category has fallen
vacant. In these circumstances, petitioner is entitled for mandamus against respondents

for providing appointment after considering his case against the vacancy which was
fallen vacant due to leaving job by candidate Prakash Ram because he was wrongly
denied appointment during the currency of wait list. This proposition of law was laid
down by Hon'ble Supreme Court in Virendra S. Hooda and Ors. v. State of Haryana and
Anr. Reported in , so also in Brijendra Singh and Ors. v. State and Ors. Reported in 2005
(3) RDD 397 (Raj.) (para 8). In Virendra S. Hooda's case (supra), the Hon'ble Apex Court
held that: The view taken by the High Court that the administrative instructions cannot be
enforced by the appellants and that vacancies became available after the initiation of the
process of recruitment would be looking at the matter from a narrow and wrong angle.
When a policy has been declared by the State as to the manner of filling up the post and
that policy is declared in terms of rules and instructions issued to the Public Service
Commission from time to time and so long as these instructions are not contrary to the
rules, the respondents ought to follow the same.
9. While considering the above cases this Bench took the view in Nathu Ram v. State and
Ors. Reported in 2005 (9) RDD 3631 (Raj.) that if any vacancy remains unfilled during
currency of waiting list then waiting list is required to be operated and petitioner who was
at serial No. 1 in waiting list was entitled for appointment, therefore, denial of
appointment to the petitioner is against the fundamental right of the petitioner. The
relevant paras 9 and 10 of the said judgment are as follows:
9. It may be noted here that the case of Bihar State Electricity Board v. Suresh Prasad and
Ors. , forcefully relied upon by the learned Counsel for the State is distinguishable for
particular reason. In that case, the question before the Court was whether the employer
was found to consider case of a candidate not having position in the merit list in the event
of non-joining by a selected candidate. The circumstance was entirely different inasmuch
as the agitating respondents, in that case fell beyond the cut-off number. However, we
find strength in the instant case by the observation of their Lordships of the Supreme
Court in the aforesaid case that the State is under no legal duty to fill up all or any of the
vacancies unless the relevant recruitment rules indicate. (Emphasis supplied). Here in the
case on hand, the petitioner was on the merit list approved by the respondents lagging just
behind Navin Kumar who did not join service pursuant to appointment order and Rule 20
of the Rules cast duty upon the Appointing Authority to fill up the post. In the case before
the Supreme Court in 2004 (2) SC 681 (supra), the repellent circumstances was the
absence of provisions of rule to offer posts to candidates in the waiting list. In the case on
hand before this Court, the petitioner was neither beyond the cut-off number nor was
placed in the waiting list to have secondary claim. Moreover, in the present case the
respondents claimed at filling up the back log vacancies in the reserved categories
pursuant to Court's order. In these circumstances, the petitioner in the present writ
petition has a legitimately founded case in his favour unlike the respondents No. 1 to 7 in
the case of Bihar State Electricity Board (supra), before the Supreme Court.
10. As a result, of the foregoing discussion, the writ petition is allowed. The respondents
are directed to appoint the petitioner to the post of Senior Teacher (Biology) forthwith
against the vacancy which remained unfilled due to non-joining of the service by the said
Shri Navin Kumar Mahecha, in case, the petitioner stands just below said Shri Navin

Kumar Mahecha in the merit list. The petitioner shall be entitled to notional benefit of
service with effect from 21.11.2003.
10. In view of the above discussion, this writ petition is allowed. Respondents are
directed to provide appointment to the petitioner on the post of Constable against the
vacancy which occurred during currency of waiting list due to leaving job by Prakash
Ram within a period of two months from the date of receipt of certified copy of this
order. The petitioner shall also be entitled for benefit of seniority and fixation of salary
however he will not be entitled for any back wages.

19 Feb 2010
Cannot appoint more than vacancies: Supreme Court
The Supreme Court of India, in a recent decision, has restated the law of the land that it is
not permissible for the Government to hand out more appointments than the vacancies
that are advertised. The Court noted that the law had been settled by a number of
decisions of the Supreme Court itself that it was against the law and also the rights of
others to appoint more people than the vacancies advertised. The decision notes as under;
9. 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 and such a deviation is permissible only after adopting policy decision based
on some rational, otherwise the exercise would be arbitrary. Filling up of vacancies over
the notified vacancies amounts to filling up of future vacancies and thus, not permissible
in law. (Vide Union of India & Ors. v. Ishwar Singh Khatri & Ors. (1992) Supp 3 SCC
84; Gujarat State Deputy Executive Engineers Association v. State of Gujarat & Ors.
(1994) Supp 2 SCC 591; State of Bihar & Ors. v. The Secretariat Assistant S.E. Union
1986 & Ors AIR 1994 SC 736; Prem Singh & Ors. v. Haryana State Electricity Board &
Ors. (1996) 4 SCC 319; and Ashok Kumar & Ors. v. Chairman, Banking Service
Recruitment Board & Ors. AIR 1996 SC 976).
10. In Surinder Singh & Ors. v. State of Punjab & Ors. AIR 1998 SC 18, this Court held
as under: A waiting list prepared in an examination conducted by the Commission does
not furnish a source of recruitment. It is operative 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 vacancy 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 as an infinite stock for appointment, 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..Exercise of such power has to be
tested on the touchstone of reasonableness.It is not a matter of course that the authority
can fill up more posts than advertised.

11. Similar view has been re-iterated in Madan Lal v. State of J & K & Ors. AIR 1995 SC
1088; Kamlesh Kumar Sharma v. Yogesh Kumar Gupta & Ors. AIR 1998 SC 1021; Sri
Kant Tripathi v. State of U.P. & Ors. (2001) 10 SCC 237; State of J & K v. Sanjeev
Kumar & Ors. (2005) 4 SCC 148; State of U.P. v. Raj Kumar Sharma & Ors. (2006) 3
SCC 330; and Ram Avtar Patwari & Ors. v. State of Haryana & Ors. AIR 2007 SC 3242).
...
14. In view of above, the law can be summarised to the effect that any appointment made
beyond the number of vacancies advertised is without jurisdiction, being violative of
Articles 14 and 16(1) of the Constitution of India, thus, a nullity, inexecutable and
unenforceable in law. In case the vacancies notified stand filled up, process of selection
comes to an end. Waiting list etc. cannot be used as a reservoir, to fill up the vacancy
which comes into existence after the issuance of notification/advertisement. The
unexhausted select list/waiting list becomes meaningless and cannot be pressed in service
any more.

Supreme Court of India

Jai Narain Ram vs State Of U.P.& Ors on 16 November, 1995
Equivalent citations: 1996 AIR 703, 1996 SCC (1) 332
Author: K Ramaswamy
Bench: Ramaswamy, K.
PETITIONER:
JAI NARAIN RAM
Vs.
RESPONDENT:
STATE OF U.P.& ORS.
DATE OF JUDGMENT16/11/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)
CITATION:
1996 AIR 703 1996 SCC (1) 332
JT 1995 (9) 123 1995 SCALE (6)671
ACT:
HEADNOTE:
JUDGMENT:
ORDER
Leave granted.
We have heard the learned counsel for the appellant and the State. For the recruitment in
the 15 posts of Treasury Officers-Accounts Officers in U.P. Finance and Accounts

Services, Sales Tax Officers (6 posts) and Regional Audit Officers (4 posts)
advertisement was made in 1988. Out of 15 posts in the Treasury Officers-Accounts
Officers in U.P. Finance and Accounts Service, 4 posts were reserved for members of the
Scheduled Castes. It would appear that as a result of competitive examination conducted
by the P.S.C., the last candidate selected for these 4 posts was one Anil Kumar Rai who
secured 361 marks in written examination and 39 marks in personality test out of 400
marks. The P.S.C. had recommended the names of four candidates. As a result, the
appellant and three others - one Balkesh Singh, Bali Ram Prasad, Amar Singh, who
secured 347+53 (total 400 marks), 3444+56 (total 400 marks), 360+39 (total 399 marks),
could not be recommended, as there was on request by the Government for putting them
in the waiting list. Since they could not be appointed, the appellant had approached the
High Court for a writ of mandamus or direction to the P.S.C. to recommend his name for
appointment in the Accounts Service. The High Court dismissed the writ petition No.nil
of 1992 by order dated December 4,1992 on the ground that the petitioner was not
intimated that he was selected. Since there was no information that he was put in the
select list, direction could not be first category, did not join in the service. As a
consequence, 4 posts were left vacant and required to be filled up by the reserved
candidates. Since the appellant is the 4th candidate among the candidates who were
standing in the order of merit, rejection of appellant's claim for appointment is illegal and
unconstitutional.
In the counter affidavit of Bihari Lal, it is stated in para 6 thus:
"That the contents of paras 11 & 12 of the S.L.P. relates to the Finance Deptt., therefore
need no comments of answering respondent. However, it is submitted that reserved posts
can be filled by the candidates of reserved categories only."
It other words, there is no denial of the aforestated four candidates not joining in the
Finance Department. It is submitted that it would be filled up by reserved candidates. 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 1 given to appoint him as Accounts Officer in Accounts Service.
In the counter-affidavit filed by the P.S.C., it was stated that since four posts were
reserved for the Scheduled Castes and the last candidate Anil Kumar Rai was already
selected and recommended for appointment, and as there was no request by the State
Government for preparation of waiting list for the vacant posts reserved for the
Scheduled Castes, the names of the appellant and the aforestated three persons could not
be recommended for appointment. It is stated in the counter-affidavit filed by Behari Lal,
Special Secretary, Karmik Anubhag Secretariat, U.P. that since the appellant was not
recommended nor found qualified for appointment, he could not claim any appointment.
In para 11 of the Special Leave Petition, a specific stand has been taken in paragraph 11
that the four candidates selected by the P.S.C., namely, Ram Bodh, Roll No.22142, Serial
No.13, Lolark Ram Roll No.442, Sl.NO. 24, and Raja Ram, Roll No.1787, Sl. No.30,
though selected and recommended for appointment in the 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 4th candidate in the order of
merit would have been selected, had there been a requisition by the State Government for
appointment of the reserved candidates.
Right to seek appointment to a post under Article 14 read with Articles 16(1) and (4) is a
constitutional right to equality. The State failed to perform its constitutional duty to
requisition the P.S.C. to recommend the next qualified persons to the posts reserved for
scheduled castes. Under these circumstances, the denial of appointment to the appellant
and three others above him is unconstitutional, Therefore, the respondents are not
justified in denying the claim of the appellant for the appointment to the above post.
The P.S.C. is, therefore, directed to recommend the name of the appellant for
appointment in the first category, i.e. Treasury Officers and Accounts Officers, within a
period of six weeks from the date of the receipt of the order and the State is directed to
issue order of appointment to the appellant within a period of six weeks thereafter.
The appeal is accordingly allowed. No costs.

HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR
Court No. 53
Civil Misc. Writ Petition No. 64659 of 2005
-------Dharmendra Singh and Others Vs. State of U.P. and Others
connected with
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connected with
Civil Misc. Writ Petition No.65042 of 2005
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connected with
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-------Krishna Chandra Pandey Vs. State of U.P. and Others

connected with
Civil Misc. Writ Petition No.65109 of 2005
-------Anand Kushwaha and Others Vs. State of U.P. and Others
connected with
Civil Misc. Writ Petition No.65111 of 2005
-------Abhay Kumar Mishra and Others Vs. State of U.P. and Others
connected with
Civil Misc. Writ Petition No.65114 of 2005
-------Diwakar Dhar Dwivedi and Others Vs. State of U.P. and Others
connected with
Civil Misc. Writ Petition No.65120 of 2005
-------Ashok Kumar Maurya Vs. State of U.P. and Others
connected with
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--------

Shailendra Kumar Yadav Vs. State of U.P. and Others

connected with
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connected with
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Civil Misc. Writ Petition No.65260 of 2005
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connected with
Civil Misc. Writ Petition No.65341 of 2005
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connected with

Civil Misc. Writ Petition No.65349 of 2005

-------Jai Prakash Maurya Vs. State of U.P. and Others
connected with
Civil Misc. Writ Petition No.65592 of 2005
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connected with
Civil Misc. Writ Petition No.65593 of 2005
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connected with
Civil Misc. Writ Petition No.65596 of 2005
-------Jitendra Narayan Pandey and Others Vs. State of U.P. and Others
connected with
Civil Misc. Writ Petition No.66054 of 2005
--------

Sateynadra Kumar Pandey Vs. State of U.P. and Others

connected with
Civil Misc. Writ Petition No.66059 of 2005
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connected with
Civil Misc. Writ Petition No.66065 of 2005
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connected with
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connected with
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connected with

Civil Misc. Writ Petition No.66448 of 2005

-------Mahendra Pd. Yadav and Others Vs. State of U.P. and Others
connected with
Civil Misc. Writ Petition No. 69871 of 2005
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connected with
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connected with
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connected with
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-------Dhirendra Kumar Upadhyaya Vs. State of U.P. and Others

connected with
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connected with
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connected with
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Civil Misc. Writ Petition No.69354 of 2005
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connected with
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-------Kanchan Pandey Vs. State of U.P. and Others

connected with
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connected with
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Civil Misc. Writ Petition No.69011 of 2005
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Civil Misc. Writ Petition No.71011 of 2005

-------Dinesh Singh and Others Vs. State of U.P. and Others
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-------Ajay Kumar Vs. State of U.P. and Others
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-------Sateyndra Singh and Others Vs. State of U.P. and Others
connected with
Civil Misc. Writ Petition No.70659 of 2005
--------

Shirish Kumar Rai Vs. State of U.P. and Others

connected with
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-------Raj Shekhar Mishra Vs. State of U.P. and Others
connected with
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-------Sachchita Nand Rai Vs. State of U.P. and Others
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Civil Misc. Writ Petition No.71471 of 2005

-------Sanjay Kumar Yadav Vs. State of U.P. and Others
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Civil Misc. Writ Petition No.71487 of 2005
-------Sattish Kumar and Others Vs. State of U.P. and Others
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-------Rajesh Singh and Others Vs. State of U.P. and Others
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-------Bechehh Raj and Others Vs. State of U.P. and Others

connected with
Civil Misc. Writ Petition No.72976 of 2005
-------Kuldeep Singh and Others Vs. State of U.P. and Others
connected with
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-------Nirbhay Jain Vs. State of U.P. and Others

HON. ARUN TANDON, J.

This bunch of 51 writ petitions has been filed by petitioners who have obtained Diploma
in Pharmacy and seek appointment on the post of Pharmacist under the provision of U.P.
Pharmacist (Allopathic) Service Rules, 1980. The petitioners may be categorised into 2
groups for disposal of these petitions published by the respondents.
(A) Petitioners who have obtained the diploma in Pharmacy prior to the year 1998 and
had applied for being considered for appointment on the post of Pharmacist in pursuance
of the Advertisement dated 25.8.1998.
(B) Petitioners who have obtained diploma in Pharmacy subsequent to year 1998 and
had not applied in pursuance of the Advertisement dated 25.8.1998.
Appointments on the post of Pharmacist is made in accordance with Rule 15 of the
Pharmacist Service Rules, 1980 for reference the same is being quoted herein below:
"Procedure for Direct Recruitment:--(1) For the purpose of recruitment there shall be
constituted a Selection Committee comprising 1. Additional Director, to be nominated by the Director.
2. Joint Director, dealing with establishment of Pharmacists;

3. Secretary, State Pharmacy Council.

(2) The Selection Committee shall prepare a list of candidates in order of merit, as
disclosed by marks
obtained by them in the diploma examination. If two or more candidates obtain equal
marks, the Selection Committee shall arrange their names in order of merit on the basis of
their general suitability for the post. The number of the names in the list shall be larger
(but not larger by more than 25 per cent) than the number of the vacancies. The list so
prepared shall hold good for one year only.
(3) The Director shall forward the requisite umber of names in order of merit from the
list to the concerned appointing authority/appointing authorities."
An advertisement was published inviting application for direct recruitment on the post of
Pharmacist on 28.8.1998 by the respondents. A selection committee was constituted for
preparing the list of candidate in order of merit as disclosed by marks obtained by them in
the diploma examination.
A dispute arose with regards to the selections so held resulting in large number of writ
petitions being filed before the Lucknow Bench of this Hon'ble Court being writ petition
no. 2473 (SS)of 2000 and other connected writ petitions. The writ petitions were heard
and decided under a common judgment dated 28.5.2004. The operative portion of the
judgment reads as follows :
"In view of the discussions made above, I hold that the petitions deserve to be allowed.
Accordingly, all the petitions are allowed and a writ of Mandamus is issued to the
opposite-parties to appoint the petitioners in the vacancies, which remained unfilled after
a select list was prepared in pursuance of the Notification dated 28th August 1998. The
appointments shall be offered within one month from the date a copy of this Judgment is
furnished to the Appointing Authority."
On the strength of the judgment in the aforesaid writ petitions the present petitioners
seek similar treatment and claim a right of appointment on the post of Pharmacist against
the existing vacancies. It is also on record that a large number of writ petitions were filed
subsequent to the aforesaid judgment of this court dated 28.5.2004 by the persons
holding a diploma of Pharmacy. The writ petitions were disposed of with a direction
that such petitioners shall also be entitled to the benefits of judgment dated 28.5.2004.
Now these 51 writ petitions have been filed wherein the number of petitioners are much
more than the vacancies which were advertised in the year 1998.

In view of the various orders passed by the Hon'ble Court, the State respondents were
put in a quandary qua offer of appointment to all such persons who had approached this
Court seeking appointment on the post of Pharmacist irrespective of the no. of posts
advertised and rules applicable. In order to resolve the controversy which had so arisen
because large number of petitioners approaching this Court for grant of similar benefit on
similar terms and conditions as granted to other petitioners, this Court thought it proper to
insist upon the State respondents to explain the factual as well as legal position before
this Court qua appointment on the post of Pharmacist with specific reference to the
direction issued under the judgment dated 28.5.2004. On behalf of the State respondents a
counter affidavit has been filed by Dr. Mahendra Kumar, Joint Director, Paramedical,
Swasthya Bhawan, Lucknow and it has been stated that in the year 1998 total number of
vacancies advertised were 423. The break up of the vacancies so advertised was as
follows :
a. General Category ............................ 199
b. Other Backward category................. 107
c. S.C./S.T. ........................................ 116
It is further stated that the Selection Committee prepared the merit list as per Rule 15 of
the Pharmacy Service Rules on yearwise basis, with reference to year in which the
particular candidate had passed the Pharmacy examination.
So far as the posts within the General Category are concerned the applicants who had
passed the Pharmacy examination upto the year 1991 have all been offered appointment
irrespective of the marks obtained in the pharmacy diploma examination. The remaining
advertised vacancies were, thereafter, offered to the candidates who had passed the
Pharmacy examination in the year 1992 and had secured of 52.08 per cent marks in
diploma examination.
Similarly in respect of candidates who had applied in pursuance of the advertisement
against the other Backward Class category, appointments have been offered to the
candidates who had passed the diploma examination upto the year 1993 irrespective of
the marks obtained in the pharmacy diploma examination. The advertised vacancies left
thereafter have been offered to the candidates who have passed the diploma examination
in the year 1994 in accordance with merit disclosed from the marks obtained by them in
the diploma examination, last candidate so appointed has secured 54.50 per cent marks.
So far as Scheduled Castes and Scheduled Tribes candidates are concerned, it is stated
that the candidates who have passed the Pharmacy examination up to the year 1996 have
been offered appointment irrespective of the marks obtained in the pharmacy diploma
examination and the remaining advertised vacancies thereafter have been filled from the
candidates who have passed the Pharmacy examination up to the year 1997 with pass
percentage of 59.20.

It is lastly stated that 23 advertised vacancies still remain to be filled which according to
the Chief Standing Counsel belong to S.C./S.T. Category only.
Chief Standing Counsel has further made a statement that any petitioner who has passed
his Pharmacy examination prior to 1991, belonging to the the general category or who
has passed the Pharmacy examination in the year 1992 with more than 52.08 per cent
marks shall be offered appointment. Similarly it is stated that any petitioner belonging to
Other Backward Class who has passed the Pharmacy examination upto year 1993 shall
be offered appointment as also any other petitioner of same category, who had passed the
diploma examination in the 1994 with 59.40 per cent marks shall also be offered
appointment. In respect of candidates belonging to S.C./S.T., it is stated that any
petitioner who has passed the Pharmacy examination, upto the year 1996 shall be offered
appointment as also any other petitioner of the said category who had obtained the
diploma in the year 1997 with 59.50 per cent marks.
However, all such petitioners to whichever category they may belong must further
satisfy the following conditions:
a. They had applied in pursuance of the Advertisement in the proforma prescribed
complete in all respect.
b. Such petitioners make a representation supported by such documents as may be
advised, within four weeks from today before the Director General, the respondent no. 2.
On such a representation being made the respondent no. 2 shall act in accordance with
law and the statement made on behalf of the respondents herein above.
If any petitioner has become over age during this period his claim shall not be rejected
on that ground.
If after offering appointment to such petitioners if certain other advertised vacancies
remain unfilled as per the advertisement of the year 1998, the respondents shall consider
the claim of other petitioners who had applied in their particular category in pursuance to
the advertisement of 1998 strictly in accordance with the merit disclosed in the Pharmacy
examination. The respondent shall endeavour to fill in all the vacancies which have been
advertised within three months from the date a certified copy of this order is filed before
the Director.
Petitioners belonging to Category 'A' referred to above are granted liberty to file their
representation supported by such documents in light of the observations referred to
above before Respondent No. 2 within two weeks from today.
So far as the petitioner belonging to Category 'B' are concerned since they had not
applied in pursuance of the Advertisement which was published in 1998, they are not
entitled for being considered against the advertised vacancy, their claim shall be
considered as and when fresh recruitment for the post of Pharmacist is undertaken by the
State respondents.

This Court has no room to doubt that if there are existing vacancies and there is a need
for fresh recruitment the State shall take a decision to start the process of selections
strictly in accordance with rules specifically Rule 15, at the earliest possible. There
should not be any inordinate delay in filing of the future vacancies as per the requirement.
In order to safeguard the interest of the parties it would be fair that the Secretary, Medical
Health U.P. may determine as to how many of the subsisting vacancies are required to be
filled in the interest of the department. Such a decision be taken preferably within two
months from the date a certified copy of this order is filed before the Secretary who shall
thereafter initiate the fresh recruitment process at the earliest.
This Court may also record that the procedure which was adopted by the Selection
Committee for preparing the list in the year 1998 was not in strict compliance of Rule 15
of the Pharmacy Service Rules 1998, inasmuch as under the Rules merit list is to be
prepared on the basis of the marks obtained in the Pharmacy Diploma examination
irrespective of the year in which the applicant had appeared in the diploma examination.
However, this Court in the present case is not inclined to upset the merit list which had
been prepared in the year 1996 as none of the petitioners had challenged the same
Selection Committee within reasonable time i.e. when the same was declared and
appointments were offered nearly 13 years ago. Moreover, the petitioners have
approached this Court seeking similar treatment as in other cases on the basis of the same
merit list prepared by the Selection Committee with reference Rule 15 of the Pharmacy
Rules in the year 1998.
All the Writ petitions stand disposed of.
Dated: 8.12.2005
V.R.

Supreme Court of India

Prem Singh And Others vs Haryana State Electricity Board ... on 7 May, 1996
Equivalent citations: 1996 SCC (4) 319, JT 1996 (5) 219
Author: N G.T.
Bench: Nanavati G.T. (J)
PETITIONER:
PREM SINGH AND OTHERS
Vs.
RESPONDENT:
HARYANA STATE ELECTRICITY BOARD AND OTHERS
DATE OF JUDGMENT: 07/05/1996
BENCH:
NANAVATI G.T. (J)
BENCH:
NANAVATI G.T. (J)
AGRAWAL, S.C. (J)
CITATION:
1996 SCC (4) 319 JT 1996 (5) 219
1996 SCALE (4)354
ACT:
HEADNOTE:
JUDGMENT:
WITH
CIVIL APPEAL NO. 7789 OF 1996
(Arising out of SLP(C) No.24555 of 1995)

Shanti Prakash and others

V.
The Haryana State Electricity Board and others WITH
CIVIL APPEAL NO. 7790 OF 1996
(Arising out of SLP(C) No.25996 of 1995)
Haryana State Electricity Board
V.
Shri Satbir Singh Bura and ors
JUDGMENT
NANAVATI, J.
Leave granted in the two SLPs. Heard learned counsel appearing in all the three appeals.
These appeals arise out of the judgment and order passed by the High Court of Punjab
and Haryana in Civil Writ Petition No. 4012 of 1993. Along with that writ petition the
High court also disposed of Civil Writ Petition Nos. 4716, 4885, 5301, 5987, 6024, 6427,
7310, 7884, 8068 of 1993 and 15534 of 1994. The High Court allowed all the writ
petitions and declared the selection/appointments of Respondents 2 to 214 in those writ
petitions as illegal and quashed the same. About 125 selected candidates have filed Civil
Appeal No.3423 of 1996 and Civil Appeal arising out of SLP(C) No.24555 of 1995. The
Civil Appeal arising out of SLP(C) No.25996 of 1995 has been filed by the Haryana State
Electricity Board (hereinafter referred to as the 'Board' ) which appointed them.
Two questions which arise for consideration in these appeals are: (1) Whether it was
open to the Board to prepare a list of as many as 212 candidates and appoint as many as
137 out of that list when the number of posts advertised was only 62? (2) Whether the
High Court was justified in quashing the selection of all the 212 candidates and
appointments of 137?
In October 1993 the Board decided to fill up 62 vacant posts of Junior Engineers by
direct recruitment. By an advertisement published on 2.11.1991 applications were invited
from eligible candidates. 15 posts were reserved for scheduled castes and scheduled
tribes candidates, 6 for backward classes and 9 for exservicemen. The last date for
receiving applications was 4.12.1991. The advertisement mentioned qualifications
necessary for those posts and it was further stated therein that preference will be given to
the candidates having higher qualification. Large number of applications were received
and after screening 5955 applicants were found eligible. 893 candidates appeared for

interview in July 1992. The selection committee selected 212 and recommended their
names in April 1993. The Board after considering the latest vacancy position as on
11.2.1993 decided on 2.4.1993 to fill up 147 posts. Following the instructions of the State
Government relating to reservation of posts, the Board distributed vacant posts as under:
1. General 74
2. SC 29
3. B.Cs. 15
4. ESM 25
5. PH 4
----------------------------------Total 147
----------------------------------It also decided to reduce the share of general category by 24 posts as there was a backlog
of that many posts reserved for scheduled castes. Accordingly, the Chief Engineer of the
Board who was the appointing authority was directed to fill up the vacant posts in
different categories as under:
1. General 50
2. Scheduled Castes 53
3. Backward Classes 15
4. Ex-Servicemen 25
5. Physical Handicapped 4
-------------------------------------------------- Total 147
-------------------------------------------------- The Chief Engineer was able to appoint 138
candidates shortly thereafter.
Some of the candidates who were not selected/appointed and one person who became
eligible soon after the last date for receiving applications challenged the
selection/appointments by filing the aforesaid writ petitions in the High Court.

The following four contentions were raised before the High Court. (1) The Board acted
in violation of Articles 14 and 16 of the Constitution in selecting as many as 212
candidates and appointing 147 even though the posts advertised were only 62. (2) No real
benefit was given to the candidates possessing higher qualifications even though it was
represented in the advertisement that preference would be given to the candidates
possessing higher qualifications. (3) About 150 candidates were interviewed every day by
each of the three selection committees. Each candidate was interviewed for a very short
time. Thus the worth of the candidate was not properly assessed and this defect vitiated
the entire process of selection. (4) As many as 50 marks were earmarked for viva voce
test and that defect also vitiated the entire selection. With respect to the third contention it
was stated by the Board in its counter affidavit that each selection committee had in fact
interviewed about 69 candidates only on each day and on an average each candidate was
interviewed for about 8 to 9 minutes. As this contention was thus found to be factually
incorrect the High Court rejected the same. The High Court also rejected the fourth
contention relying upon the decision of this Court in Anzar Ahmad vs. State of Bihar and
others 1994(1) SCC 150. The decision of the High Court on these two points is not
challenged before us and, therefore, they need no further consideration. The High Court
upheld the first contention as it was of the opinion that the Board committed a breach of
the equality clause contained in Articles 14 and 16 of the Constitution because it was not
fair and open to the Board to take into consideration 85 more posts which became.
available after the date of the advertisement while preparing the select list and making
appointments. As regards the second contention the High Court did not find any
substance in the submission that the Board should have, in the first instance, selected only
those candidates who possessed higher qualifications and that it could have considered
others only if persons possessing higher qualifications were not found otherwise suitable.
But it upheld the contention that as the Board had decided to give preference to the
candidates possessing higher qualifications it could not have made the selection "without
specifying any advantage to the candidates". In absence of any explanation given by the
Board at the time of hearing of the writ petitions "as to how many marks were fixed for
those having the minimum qualifications and how many marks were fixed for those
having the higher qualifications" the High Court held that the Board did not "at all keep
in mind the contents of the advertisement while laying down the criteria for award of
marks". This omission and deviation from the condition mentioned in the advertisement,
according to the High Court, resulted in denying benefit of higher qualifications to the
petitioners and other similarly situated persons. The High Court, therefore, allowed the
petitions and quashed the selection and appointments made by the Board. It was
contended by Mr. P.P.Rao, learned senior counsel appearing for the appellants in Civil
Appeal No.3423 1996 and the learned counsel appearing for the other appellants that the
High Court wrongly held that the Board had either overlooked or deviated from the
condition that preference would be given to those candidates who possessed higher
qualifications. It was submitted that though in the counter affidavit filed by the Board the
correct position in this behalf was not properly explained, the record produced before the
court clearly disclosed that the selection committee had before hand decided the norm as
regards the manner in which preference was to be given for higher qualifications. It has
been stated in SLP(C) No.24555 of 1995 and it is not denied by the respondents that the
selection committee had adopted the norm of giving more marks for higher

qualifications. It had given 2 marks to the candidates possessing diploma qualification

and had obtained upto 75% marks. 3 marks were given to those candidates who
possessed diploma and had obtained more than 75% marks and also to them who had
obtained B.E. or B.Tech. degrees. Those who possessed AMIE degree were given 4
marks. 5 marks were given to those candidates who possessed M.E. or M.Tech. degrees.
On the basis of this material it can be said that weightage was in fact given for higher
qualifications. The High Court was, therefore, not right in holding that the benefit of
higher qualifications was denied to those candidates who possessed them. We are also of
the opinion that it was not necessary to indicate in advance to the candidates the manner
in which benefit of higher qualifications was to be given to them. Once we find that the
selection committee had fixed the norm in this behalf in advance and that norm was
applied uniformly to all the candidates it will have to be held that it acted in a fair manner
and did not contravene the provisions of Articles 14 and 16 of the Constitution. The
learned counsel for the respondents, however, tried to support the finding of the High
Court on this point by contending that in view of the representation made in the
advertisement what was required to be done by the Board was to consider first those
candidates who had higher qualifications and the candidates with lesser qualifications
could have been considered only thereafter. This contention was rejected by the High
Court, and in our opinion rightly. Ordinarily, giving of preference for higher
qualifications would imply that other things being equal the candidates with higher
qualifications will be preferred. The representation made in the advertisement did not
imply or convey that the selection was to be made in two stages, that is, firstly, the
candidates having higher qualifications were to be considered and only thereafter the
candidates with minimum qualifications were to be considered and that too if adequate
number of candidates possessing higher qualifications did not become available.
Therefore, the contention raised on behalf of the respondents has to be rejected.
It was next contended by the learned counsel for the appellants that selection of
candidates in excess of the number of posts advertised does not per se offend the equality
guaranteed by Articles 14 and 16 of the Constitution. It was submitted that in view of
delay which was likely to take place in the process of selection and appointments it was
permissible to the Board to take into consideration anticipated vacancies and make
provision for the same also. They further submitted that the High Court should not have
quashed the selection and set aside the appointments at the instance of original writ
petitioners as in any case they were not selected by the selection committee and,
therefore, were not likely to get any benefit by getting the selection and appointments
invalidated. The learned counsel also questioned the locus stand of the writ petitioners as
all of them except one had taken part in the process of selection without any objection
They also pointed out that Petitioner No.3 in Writ Petition No. 4012 of 1993 was not even
eligible to be considered for the post on the last date for receiving applications.
In our opinion, there is no substance in the objection raised with respect to locus stand of
the original writ petitioners. The candidates could not have anticipated when they
appeared for the interview that the Selection Committee would recommend candidates
and the Board would make appointments far in excess of the advertised posts. The
petitioner who was not eligible had a just grievance that due to appointments of

candidates in excess of the posts advertised he was deprived of the right of consideration
for appointment against the posts which would have become vacant after he acquired
eligibility.
The factual position in this case, as disclosed by the record, is that on 15.10.90 the Board
decided to fill up 62 vacant posts of Junior Engineers by direct recruitment. On 2.11.90
the Board advertised those 62 vacant posts and invited applications by 4.12.90. In the
notification of vacancies required to be issued under the Employment Exchange Act and
the Rules also the vacancies notified were
62. After the posts were advertised and published but before appointments could be made
13 more posts became vacant because of retirement and 12 because of deaths.
Meanwhile, the Board also created 60 new posts of Junior Engineers. The stand taken by
the respondent-Board before the High Court was that by April 1993, 85 more posts had
become vacant. Even when 62 posts were advertised there was a backlog of 62 posts of
Junior Engineers and that was through oversight not taken into consideration. Out of the
said backlog of 62 posts 36 posts were of direct recruitment quota and this had come to
the notice of the Board in December 1991. There was a backlog of 24 posts belonging to
reserved category. It was for these reasons that on 2.4.1993 the Secretary of the Board
had written to the Chief Engineer who was the appointing authority that as the list of 212
candidates selected by the selection committee was received and as 147 posts were
vacant as on 11.2.93 he should fill up all those vacant posts as directed therein. Out of the
said list the Board was able to appoint 138 candidates.
In was submitted by the learned counsel for the appellants that the selection process
which had started on 2.11.91 was completed in April 1993 when the selection committee
forwarded the list of selected candidates to the Secretary of the Board. In view of this
long lapse of time and large number of posts remaining vacant it was permissible to the
Board to make appointments in excess of the number of posts advertised, If the Board
had not filled up those posts then its work would have suffered adversely. It was
submitted that bearing in mind these realities the High Court should have adopted a
pragmatic approach and refrained from quashing the selection and appointments made by
the Board. In support of these contentions the learned counsel relied upon one decision of
the Punjab and Haryana High Court and some decisions of this Court. In Subhash
Chander Sharma and others vs. State of Haryana 1984(1) SLR 165 the facts were that as
against 60 advertised posts the Public Service Commission had recommended almost
double the number and more than 60 candidates were appointed on the basis of that
selection. Relying upon the earlier decision of the same High Court in Sachida Nand
Sharma and others vs. Subordinate Services Selection Board. Haryana decided on 1.6.83
it was contended that all appointments beyond 60 should be invalidated. The High Court
distinguished its earlier decision in Sachida Nand Sharma's case (supra) and held that if
the State adopted a pragmatic approach by taking into consideration the existing
vacancies in relation to the process of selection which sometimes take a couple of years
and made appointments in excess of the posts advertised, then such an action cannot be
regarded as unconstitutional. In Ashok Kumar Yadav and others vs. State of Haryana
1985 Suppl. (1) SCR 657 what had happened was that Haryana Public Service

Commission had invited applications for recruitment to 61 posts in Haryana Civil Service
and other allied Services. The number of vacancies rose during the time taken up in the
written examination and the viva voce test and thus in all 119 posts became available for
being filled. The Haryana Public Service Commission, therefore, selected and
recommended 119 candidates to the Government. Writ Petitions were filed in the High
Court of Punjab and Haryana challenging the validity of the selections on various
grounds. The High Court set aside the selection as it was of the view that the selection
process was vitiated for more than one reason. On appeal, this Court also found substance
in the contention that the Haryana Public Service Commission was not justified in calling
for interview candidates representing more than 20 times the number of available
vacancies and that the percentage of marks allocated for the viva voce test was unduly
excessive. Yet this Court did not think it just and proper to set aside the selections made
by the Haryana Public Service Commission as by that time two years had passed and the
candidates selected were already appointed to various posts and were working on those
posts since about two years. In A.V. Bhogeshwarudu vs. Andhra Pradesh Public Service
Commission J.T. 1989(4) SC 130 the process of selection had started in 1983 and was
completed in 1987. The vacancies that arose in between were also sought to be
accommodated from the recruitment list prepared by the State Public Service
Commission. The point which arose for consideration was if out of the names
recommended for appointments some candidates did not join, whether the vacancies
remaining unfilled can be filled from out of the remaining successful candidates. This
Court held that there was no justification in insisting that instead of filling up the
vacancies by recommended candidates a fresh selection list should be made. This
decision is, therefore, not relevant for the purpose of this appeal. So also, the cases of
Neelima Shangla vs. State of Haryana 1986 (3) SCR 785 and Shankarsan Dash vs. Union
of India 1991 (2) SCR 567 cited by the learned counsel for the appellants are of no help
as the point involved in those cases was altogether different. In Hoshiar Singh vs. State of
Haryana 1993 (4) Suppl. SCC 377, a requisition was sent to select candidates for
appointment on 6 posts of Inspectors of Police by advertisement dated January 22, 1988.
Applications were invited for the said 6 posts. Subsequent to the written examination but
prior to the physical test and interview a revised request for 8 more posts was sent. The
Board recommended 19 names out of which 18 persons were given appointments. Those
appointments were challenged before the Punjab and Haryana High Court and it was held
that appointments beyond 8 posts were illegal. On appeal this Court held that since
requisition was for 8 posts, the Board was required to send its recommendation for 8
posts only. This Court further observed: The appointment on the additional posts on the
basis of such selection and recommendation would deprive candidates who were not
eligible for appointment to the posts on the last date for submission of applications
mentioned in the advertisement and who became eligible for appointment thereafter, of
the opportunity of being considered for appointment on the additional posts because if the
said additional posts are advertised subsequently those who become eligible for
appointment would be entitled to apply for the same. The High Court was, therefore, right
in holding that the selection of 19 persons by the Board even though the requisition was
for 8 posts only, was not legally sustainable".

In the case of State of Bihar vs. Secretariat Assistant Successful Examinees Union 1986
and Others 1994 (1) SCC 126, the Bihar State Subordinate Services Selection Board had
issued an advertisement in the year 1985 inviting applications for the posts of Assistants
falling vacant upto the year 1985-86. The number of vacancies as Then existing was
announced on August 25,1987, the examination was held in November 1987 and the
result was published only in July 1990. Immediately thereafter out of successful
candidates 309 candidates were given appointments and the rest empanelled and made to
wait for release of further vacancies. Since the vacancies available uptil December 31,
1988 were not disclosed or communicated to the Board no further appointment could be
made. The empanelled candidates, after making an unsuccessful representation to the
State Government approached the Patna High Court which directed them to be appointed
in vacancies available on the date of publication of the result as well as the vacancies
which had arisen upto 1991. The State appealed against that decision and this Court held
that the direction given by the High Court for appointment of empanelled candidates
according to the merit list against the vacancies till 1991 was not proper and cannot be
sustained. This Court further observed that since no examination was held since 1987
persons who became eligible to compete for appointments were denied the opportunity to
take the examination and the direction of the High Court would prejudicially affect them
for not fault of theirs. However, keeping in view the fact situation of the case this Court
upheld the appointments made on the posts falling vacant upto 1988 and quashed the
judgment of the High Court which directed the filling up of the vacancies of 1989, 1990
and 1991 from out of the list of the candidates who had appeared in the examination held
in 1987.
In the case of Gujarat State Dy. Executive Engineers' Association vs. State cf Gujarat
1994 Supp (2) SCC 591 the following question arose for consideration: "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?" Though this question
was examined in the context of Executive Engineers (Civil) Gujarat Service of Engineers
Class I Recruitment Rules, 1979 the following observations made by this Court are of
general application. Therein this Court has observed: "How a waiting list 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. 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.
Therefore, 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 then 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.

The following observations made
therein are also relevant:"Appointment in future
vacancies from waiting list
prepared by the Commission should
be an exception rather than the
rule. It has many ramifications.
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 1380
and 1983 and between 1983 and
1993. 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."
However, on equitable considerations this Court did not set aside appointments of those
candidates who were appointed in pursuance of the decision of the High Court but gave
appropriate directions for securing ends of justice. In State of Bihar Vs. Madan Mohan
Singh (1994 Supp (3) SCC 308) this Court held that the advertisement and the whole
selection process were meant only for 32 vacancies. The process came to an end as soon
as these vacancies were filled up. If the same list has to be kept alive for the purpose of
filling up of other vacancies, it would amount to deprivation of rights of other candidates
who would have become eligible subsequent to the said advertisement and the selection
process.
In State of Bihar vs. Madan Mohan Singh and others 1994 Supp (3) SCC 308 this Court
has in terms held that if the advertisement and the consequent selection process were
meant only to fill up certain number of vacancies then the meant list will hold good for
the purpose of filling up those notified vacancies and no further. In that case 32 vacancies
were advertised but a select list of 129 candidates was prepared. A question arose whether
more candidates could be appointed on the basis of the said select list. This Court held
that once the 32 vacancies were filled up the process of selection for those 32 vacancies
got exhausted and came to an end. It was further held that if the same list has to be kept
subsisting for the purpose of filling up other vacancies also that would naturally amount
to deprivation of rights of other candidates who would have become eligible subsequent
to the said advertisement and selection process.
One of the questions which fell for consideration in Madan Lal and others vs. State of J
& K 1995 (3) SCC 486 was whether preparation of meant list of 20 candidates was bad
as the vacancies for which the advertisement was issued by the Commission were only 11
and the requisition that was sent by the Government for selection was also for those 11
vacancies. This Court held that the said action of the Commission by itself was not bad
but at the time of giving actual appointments the meant list had to be so operated that
only 11 vacancies were filled up. The reason given by this Court was that as the
requisition was for 11 vacancies the consequent advertisement and recruitment could also
be for 11 vacancies and no more. This Court further observed: "It is easy to visualize that
if requisition is for 11 vacancies and that results in the initiation of recruitment process by
way of advertisement, whether the advertisement mention filling up of 11 vacancies or
not, the prospective candidates can easily find out from the Office of the Commission that
the requisition for the proposes recruitment is for filling up 11 vacancies. In such a case a
given candidate may not like to compete for diverse reasons but if requisition is for larger
number of vacancies for which recruitment is initiated, he may like to compete.
Consequently the actual appointment to the posts have to be confined to the posts of

recruitment to which requisition is sent by the Government. In such an eventuality,

candidates excess of 11 who are lower in merit list of candidate can only be treated as
wait-listed candidates in order of merit to fill only the 11 vacancies for which recruitment
has been made, in the event of any high candidate not being available to fill the 11
vacancies for any reason. Once the 11 vacancies are filled by candidates taken in order of
merit from the select list that list will get exhausted, having served its purpose". It may
also be stated that while making the aforesaid observations this Court agreed with the
contention that while sending a requisition for recruitment to posts the Government can
keep in view not only actual vacancies than existing but Also anticipated vacancies. From
the above discussion of the case law it becomes clear that the selection process by way of
requisition and advertisement can by started for clear vacancies and also for anticipated
vacancies but not for future vacancies If the requisition and advertisement are for certain
number of posts only the State cannot make more appointments than the number of posts
advertised, even though it might have prepared a select list of more candidates. The State
can deviate from the advertisement and make appointments on posts falling vacant
thereafter in exceptional circumstances only or in an emergent situation and that too by
taking a policy decision in that behalf. Even when filling up of more posts than advertised
is challenged the Court may not, while exercising its extra-ordinary jurisdiction,
invalidate the excess appointments and may mould the relief in such a manner as to strike
a just balance between the interest of the State and the interest of persons seeking public
employment. What relief should be granted in such cases would depend upon the facts
and circumstances of each case. In the present case, as against the 62 advertised posts the
Board made appointments on 138 posts. The selection process was started for 62 clear
vacancies and at that time anticipated vacancies were not taken into account. Therefore,
strictly speaking, the Board was not justified in making more than 62 appointments
pursuant to the advertisement published on 2.11.1991 and the selection process which
followed thereafter. But as the Board could have taken into account not only the actual
vacancies but also vacancies which were likely to arise because of retirement etc. by the
time the selection process was completed it would not be just and equitable to invalidate
all the appointments made on posts in excess of 62. However, the appointments which
were made against future vacancies - in this case on posts which were newly created must be regarded as invalid. As stated earlier, after the selection process had started 13
posts had become vacant because of retirement and 12 because of deaths. The vacancies
which were likely to arise as a result of retirement could have been reasonably anticipated
by the Board. The Board through oversight had not taken them into consideration while a
requisition was made for filling up 62 posts. Even with respect to the appointments made
against vacancies which arose because of deaths, a lenient view can be taken and on
consideration of expediency and equity they need not be quashed. Therefore, in view of
the special facts and circumstances of this case we do not think it proper to invalidate the
appointments made on those 25 additional posts. But the appointments made by the
Board on posts beyond 87 are held invalid. Though the High Court was right in the view
It has taken. we modify its order to the aforesaid extent. These appeals are allowed
accordingly. No order as to costs.

Supreme Court of India

Neelima Shangla Ph.D. Candidate vs State Of Haryana & Ors on 17 September, 1986
Equivalent citations: 1987 AIR 169, 1986 SCR (3) 785
Author: O C Reddy
Bench: Reddy, O. Chinnappa (J)
PETITIONER:
NEELIMA SHANGLA Ph.D. CANDIDATE
Vs.
RESPONDENT:
STATE OF HARYANA & ORS.
DATE OF JUDGMENT17/09/1986
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
DUTT, M.M. (J)
CITATION:
1987 AIR 169 1986 SCR (3) 785
1986 SCC (4) 268 JT 1986 445
1986 SCALE (2)435
CITATOR INFO :
APL 1989 SC1637 (11)
D 1991 SC1612 (1,7,8)
ACT:
Haryana Civil Services (Judicial Branch) - Subordinate Judges-Appointment to-Parts &
D/Rules 7 & 8 - Public Service Commission-Whether it can withhold the name of some

of the qualified candidates-Duty of the Commission to make available to government

complete list of qualified candidates.
HEADNOTE:
Out of 390 candidates who appeared at the test held in 1983-84 for selection to the
Haryana Civil Service (Judicial Branch), 54 candidates belonging to the general category,
four candidates belonging to the backward classes, four candidates belonging to
scheduled castes and two candidates belonging to the category of ex-servicemen,
qualified for appointment by securing the prescribed minimum of 55 per cent. The
petitioner was ranked No. 24. There were 54 vacancies altogether but the Public Service
Commission recommended 26 candidates only and they included 17 from the general
category.
In a writ petition under Art. 32 of the Constitution, the petitioner contended (i) that if the
rules relating to the appointment of Subordinate Judges in Haryana had been adhered to,
she would have been selected for appointment; and (ii) that 32 candidates in order of
merit from the general category should have been selected for appointment and that the
Service Commission illegally withheld the names of all the successful candidates from
the Government and the High Court.
Allowing the writ petition,
^
HELD: 1.1 The scheme of the rules relating to the appointment of Subordinate Judges in
Haryana appears to be that the Public Service Commission should hold first a written test
in subjects chosen by the High Court and next a Viva-voce test. The result of the
examination is required to be published in the Haryana Gazette and the selection for
appointment is to be made strictly in the order in which the candidates
786
have been placed by the Service Commission in the list of candidates qualified under rule
8 of Part-C. [790 B-D] 1.2 Under the "Rules relating to the appointment of Subordinate
Judges in Haryana", the Public Service Commission is not concerned with the number of
vacancies at all. Nor is it expected to withhold the full list of successful candidates on the
ground that only a limited number of vacancies are available. The duty of the Public
Service Commission is confined to holding the written examination, holding the Vivavoce test and arranging the order of merit according to marks among that candidates who
have qualified as a result of the written and the Viva-voce tests. Thereafter the Public
Service Commission is required to publish the result in the Gazette and, apparently to
make the result available to the Government. The Public Service Commission is not
required to make any further selection from the qualified candidates and is, therefore, not
expected to withhold the names of any qualified candidates. The duty of the Public
Service Commission is to make available to the Government a complete list of qualified

candidates arranged in order of merit. Thereafter the Government is to make the selection
strictly in the order in which they have been placed by the Commission as a result of the
examination. The names of the selected candidates are then to be entered in the Register
maintained by the High Court strictly in that order and appointments made from the
names entered in that Register also strictly in the same order. It is, of course, open to the
Government not to fill up all the vacancies for a valid reason. [790 E-H; 791 A]
2. The selection cannot arbitrarily be restricted to a few candidates, notwithstanding the
number of vacancies and the availability of qualified candidates. There must be a
conscious application of the mind of the Government and the High Court before the
number of persons selected for appointment is restricted. Any other interpretation would
make rule 8 of Part of the Rules relating to the appointment of Subordinate Judges in
Haryana meaningless. [791 D-E] In the instant case, the reason given by the Public
Service Commission for not communicating the entire list of qualified candidates to the
Government is that they were originally informed that there were only 28 vacancies. That
is not a sound reason at all. The net result is that qualified candidates, though available,
were not selected and were not appointed. The petitioner is one of them. Therefore, she is
entitled to be selected for appointment as Subordinate Judge in the Haryana Civil Service
(Judicial Branch). [791 F; 792 B-C]
787
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 292 of 1986.
Under Article 32 of the Constitution of India. Petitioner-in-person.
C.M. Nayar, C.V. Subba Rao, Pankaj Kalra, Ms. Abha Jain, A.K. Goel, T.V.S.N. Chari
and S.M. Ashri for the Respondents
The Judgment of the Court was delivered by O. CHINNAPPA REDDY, J. Miss Neelima
Shangla desires to be . appointed to the Haryana Civil Service (Judicial) Branch. She has
a brilliant academic record. The certificates produced by her show that from
Matriculation to LL.B. she has passed every one of her examinations m the first division.
She was ranked No. 2 in the LL.B. examina- tion of the Punjab University. She was
awarded the national merit scholarship and the UGC's scholarship. She was also awarded
the medal for the best all round student of the Law Department in the year 1980-81. Her
extra-curricular activities also appear to be of a very high order. She was President of the
College Young Speakers' Club, Vice- President of the College Students' Council, the best
camper and debater and represented the Punjab University in the All-India Rock
Climbing and Mountaineering Camp. She was the student Editor of the College
Magazine, the Law Review and the Punjab University Magazine. She has also some
published works to her credit. She appeared at the competitive test held in 1983-84 for
selection to the Haryana Civil Service (Judicial) Branch. She secured 60.8 per cent marks
in the written test and 50.5 per cent marks in the viva voce test. She was ranked No. 24. It

may be mentioned here that there were altogether 774 applicants, while 390 only
appeared at the test. Out of the candidates who appeared at the test, 54 candidates
belonging to the general category, four candidates belonging to backward classes, four
candidates belonging to scheduled castes and two candidates belonging to the category of
ex-servicemen, qualified for appointment by securing the prescribed minimum of 55 per
cent. According to the petitioner, though there were 54 vacancies altogether, the Public
Service Commission purported to recommend 26 candidates only and they included 17
from the general category. The petitioner claims that 32 candidates in order of merit from
the general category should have been selected for appointment and that the Service.
Commission 788
illegally withheld the names of all the successful candidates from the Government and
the High Court. She contents that if the rules had been adhered to, she would have been
selected for appointment. To appreciate her submission, it is necessary to refer to the
relevant rules. The rules relating to the appointment of Subordinate Judges in Haryana are
in six parts-A, B, C, D, & F. Part A deals with qualifications. Part deals with submission
of rolls. Part deals with examination of candidates. Rule 1 of Part provides that an
examination will be held at a place to be determined by the Haryana Public Service
Commission. Rule S provides that the Judges of the High Court may, from time to time,
declare the subjects in which the examination will be held. Rule 7 prescribes that no
candidate shall be called for the viva-voce test unless he obtains at least 45 per cent
marks in the aggregate in all the written papers and 33 per cent marks in the language
paper, Hindi (in Devanagri script). Rule 8 is important and it is as follows. "No candidate
shall be considered to have qualified in the examination unless he obtains at least 55 per
cent in the aggregate of all papers including Viva-Voce test.
The merit of the qualified candidates shall be determined strictly according to the marks
obtained by them.
Provided that in case two or more candidates obtain equal marks, their merit shall be
determined according to the marks secured by them in the Viva-Voce and if the marks in
the Viva-Voce of the candidates are also equal, the older in age shall be placed higher in
order of merit," Rule 10 is also important and it is as follows: "(i) The result of the
examination will Haryana Government Gazette.
(ii) Candidates will be selected for appointment strictly in the order in which they have
been placed by the Haryana Public Service Commission in the list of those who have
qualified under rule 8: Provided that in the case of candidates belonging to
789
the Scheduled Castes/Tribes and other Backward Classes, Government will have a right
to select in order of merit a candidate who has merely qualified under rule 8, irrespective
of the position obtained by him in the examination: Provided further that the selection of
candidates belonging to the Scheduled Castes/ Tribes and other Backward Classes in the

order of merit inter se shall be made against the vacancies reserved for them and in the
manner prescribed by Government from time to time."
Part of the rules deals with "Appointment". Rule 1 of Part is as follows:
"The names of candidates, selected by Government for appointment as Subordinate
Judges under rules 10 and 11 of Part C, shall be entered on the High Court Register in the
order of their selection." Rule 7(1) may also be extracted and it is as follows: "Whenever
it shall appear to the Judges that a vacancy or vacancies in the cadre of the Judicial
Branch of the Haryana Civil Service, whether permanent, temporary or officiating,
should be filled, they will make a selection from the High Court Register in the order in
which the names have been entered in the register under rule 1 of this Part. The name or
names of the selected candidate or candidates will be forwarded to Government for
appointment as Subordinate Judges under Article 234 of the Constitution of India. Every
Subordinate Judge shall, in the first instance, be appointed on probation for two years but
this period may be extended from time to time expressly or impliedly so that the total
period of probation including extension, if any, does not exceed three years.
Explanation-The period of probation shall be deemed to have been extended impliedly if
a Subordinate Judge is not confirmed on the expiry of his period of probation. '
Rule 8 is again important and it is as follows: 790
"There is no limit to the number of names borne on the High Court Register but
ordinarily no more names will be included than are estimated to be sufficient for the
filling of vacancies which are anticipated to be likely to occur within two years from the
date of selection of candidates as a result of an examination."
The scheme of the rules appears to be that the Public Service Commission should hold
first a written test in subjects chosen by the High Court and next a Viva-Voce test. Unless
a candidate secures 45 per cent of the marks in the written papers and 33 per cent in the
language paper, he will not be called for the Viva-Voce test. All candidates securing 55
per cent of the marks in the aggregate in the written and Viva-Voce tests are considered as
qualified for appointment, their merit being determined strictly in accordance with the
marks obtained by them. The result of the examination is required to be published in the
Haryana Gazette and the selection for appointment is to be made strictly in the order in
which they have been placed by the Service Commission in the list of candidates
qualified under rule 8 of Part-C. The names of the selected candidates are to be entered in
a Register maintained by the High Court in the order of their selection and appointments
are to be made from the names entered in the Register in that order. The number of names
to be entered in the Register maintained by the High Court may be sufficient to fill
vacancies anticipated to occur within two years from the date of selection of candidates
as a result of the examination. Therefore, it appears that the duty of the Public Service
Commission is confined to holding the written examination, holding the Viva-Voce test
and arranging the order of merit according to marks among the candidates who have
qualified as a result of the written and the Viva-Voce tests. Thereafter the Public Service

Commission is required to publish the result in the Gazette and, apparently to make the
result available to the Government. The Public Service Commission is not required to
make any further selection from the qualified candidates and is, therefore, not expected to
withheld the names of any qualified candidates. The duty of the Public Service
Commission is to make available to the Government a complete list of qualified
candidates arranged in order of merit. Thereafter the Government is to make the selection
strictly in the order in which they have been placed by the Commission as a result of the
examination. The names of the selected candidates are then to be entered in the Register
maintained by the High Court strictly in that order and appointments made from the
names
791
entered in that Register also strictly in the same order. It is, of course, open to the
Government not to fill up all the vacancies for a valid reason. The Government and the
High Court may, for example, decide that, though 55 per cent is the minimum qualifying
mark, in the interests of higher standards, they would not appoint anyone who has
obtained less than 60 per cent of the marks. Something of that nature happened in State of
Haryana v. Subash Chander Marwah & Ors. In that case, though the rules prescribed a
minimum 45 per cent of the aggregate marks to be qualified for appointment as a
Subordinate Judge, the High Court and the Government decided not to appoint candidates
who had secured less than 55 per cent marks. The result was that although there were a
large number of vacancies, only a few candidates were selected for appointment. The
selection was challenged on the ground that it could not be so restricted when qualified
candidates were available. This court rejected the submission and upheld the selection.
However, as we said, the selection cannot arbitrarily be restricted to a few candidates,
notwithstanding the number of vacancies and the availability of qualified candidates.
There must be a conscious application of the mind of the Government and the High Court
before the number of persons selected for appointment is restricted. Any other
interpretation would make rule 8 of Part meaningless. In the present case, though the
rules required the Public Service Commission to publish the result of the examination
and, apparently, also to communicate the result to the Government, the Public Service
Commission did not publish the result in the first instance and sent only the names of 17
candidates belonging to general category to the Government, though many more had
qualified. That was wrong. The names of all the qualified candidates had to be sent to the
Government. The reason given by the Public Service Commission for not communicating
the entire list of qualified candidates to Government is that they were originally informed
that there were only 28 vacancies. That is not a sound reason at all. Under the "Rules
relating to the appointment of Subordinate Judges in Haryana", the Public Service
Commission is not concerned with the number of vacancies at all. Nor is it expected to
withhold the full list of successful candidates on the ground that only a limited number of
vacancies are available. The Government of Haryana has taken the stand that they were
unable to select and appoint more candidates as the names of only a few candidates were
sent to them by the Public Service Commission. It now transpires that even before the
Public Service Commission sent its truncated list to the Government, the High Court had
already informed the Government that there were more vacancies 792

which required to be filled. The Government not knowing that the names of several
candidates who were qualified had been withheld from the Government by the Service
Commission, wrote to the Service Commission to held a fresh competitive examination.
If the Government had been aware that there were qualified candidates available, they
would have surely applied rule 8 of Part and made the necessary selection to be
communicated to the High Court. The net result is that qualified candidates, though
available, were not selected and were not appointed. Miss Neelima Shangla is one of
them. In the view that we have taken of the rules, Miss Neelima Shangla is entitled to be
selected for appointment as Subordinate Judge in the Haryana Civil Service (Judicial)
Branch. By an interim order of this Court, one post of Subordinate Judge has been kept
vacant for her. We direct the first respondent (Government of Haryana) to include the
name of the petitioner (Miss Neelima Shangla) in the 1984 List of candidates selected for
appointment as subordinate judges in the Haryana Judicial Service (Judicial Branch) and
forward the same to the High Court of Punjab and Haryana for inclusion in the High
Court Register maintained under Rule 1 of Part of the Rules. She will be entitled to her
due place in the Seniority List of the 1984 batch. The petitioner will be entitled to her
costs which we quantify at Rs. 5000.
As a result of our finding a few more candidates would also be entitled to be included in
the Select List and ordinarily we would have directed their inclusion in the list. But
having regard to the fact that most of the others have not chosen to question the selection
and the circumstance that two years have elapsed we do not propose to make any such
general order as that would completely upset the subsequent selection and create
confusion and multiplicity of problems. The cases of any other candidate who may have
already filed a writ petition; this Court or the High Court will be disposed of in the light
of the, judgment. These who have not so far chosen to question the selection will not be
allowed to do so in the future because of their laches.
M.L.A. Petition allowed
793