Brijendra Kumar vs State of U.P. and Others

We have heard Shri Devendra Kumar Yadav, learned Counsel for the Appellant. Shri Amit Sthalekar has accepted notice on behalf of Respondent No. 2. Shri V.K. Misra appears for Respondent Nos. 4 and 5.

The delay in filing the Special Appeal has been sufficiently explained and is accordingly condoned.

In this intra Court appeal the Appellant has prayed for setting aside the judgment dated 2.2.2011 passed by the learned Single Judge dismissing the writ petition on the ground that after the appointments on the available vacancies of Class-IV posts in the judgeship at Hathras for which the advertisement was made in the year 2006, the waiting list had exhausted itself and that no further appointment could be made from the list, if there was any subsequent vacancy.

In para 9 of the counter affidavit filed in the writ petition Shri Daya Ram Chaturth working as Additional District and Sessions Judge, Fast Track Court No. 1, Siddharth Nagar has explained that one vacancy of the Office Messenger was unfilled at that time. The post of Office Messenger, left vacant in the judgeship for quite some time was not advertised in the year 2006, but was filled up on the same selection after which there was no vacancy.

In The District Judge and The Hon''ble High Court of Judicature Vs. Sri Anurag Kumar, Deepak Nigam, Narendra Kumar Khare and Sri Tarun Pratap Yadav, and Ashwani Kumar v. State of U.P. 2007 (1) Uplbec 751 this Court had considered the question of filling up of the vacancies arising subsequently from out of waiting list prepared against the advertised post. It was held that after the vacancies are filled up from the selections, the waiting list cannot be utilised for vacancies arising in future.

Learned Single Judge has further found relying upon U.P. Public Service Commission, Allahabad v. State of U.P. 2007 (5) ADJ (5) 280 (DB), Ved Prakash Tripathi v. State of U.P. 2001 (1) ESC 317 and Surinder Singh and Others Vs. State of Punjab and Another, that a person selected and placed in the waiting list does not have indefeasible right to claim appointment. There is no legal duty with the State to fill up all the vacancies. The State can leave the vacancies unfilled for valid reason.

In this case we find that the advertisement was made for 3 posts but since there was vacancy available in the year 2006 itself, select list was utilised to give the fourth persons on the select list appointment on the vacancy of the Office Messenger. After giving the appointment to him the list exhausted itself and no further appointment could be made from it. The Appellant does not have any right to claim any vacancy, which may have arisen subsequently.

The special appeal is dismissed.