K. Srinivasa Raghavan vs Union Of India & Anr.

This OA has been filed by the applicant seeking the following relief:

Brief facts of the case, as submitted by the applicant are as follows:

The Original Application has been filed seeking quashing of the appointment order issued in favour of the second respondent and for a consequential direction to appoint the applicant to the post of Upper Division Clerk, along with other consequential reliefs. The applicant possesses a B.B.A. Degree and has also acquired Typewriting (Higher) qualification in both English and Tamil. Pursuant to the Notification dated 11.08.2015, applications were invited for filling up 503 vacancies to the post of Upper Division Clerk, and the applicant duly submitted his application for the said post. Thereafter, the respondents published the select list as well as the waiting list comprising 181 candidates. The applicant was placed at Sl. No.55 in the Unreserved (U.R.) category and secured 39.50 marks. According to the applicant, notwithstanding his higher position in the waiting list, the second respondent, who was placed at Sl. No.57 in the U.R. category, was appointed to the post by overlooking the applicant's claim. Aggrieved by the same, the present Original Application has been filed seeking quashing of the appointment of the second respondent and for a consequential direction to appoint the applicant to the post of Upper Division Clerk.

When the matter was taken up for final hearing, the applicant, appearing in person, submitted that he was entitled to appointment to the post of Upper Division Clerk/Senior Clerk and that the denial of appointment to him was arbitrary, discriminatory and illegal. He submitted that, having been placed at Sl. No.55 in the waiting list, he had a legitimate expectation of being considered for appointment. According to him, the appointment of the second respondent, who was placed at Sl. No.57 in the General category in the waiting list, while overlooking his candidature, was wholly arbitrary and contrary to the principles of fairness and equality. He further contended that the appointment of the second respondent, despite the applicant being higher in rank in the General category, amounted to discrimination and was therefore liable to be set aside. On these grounds, the applicant prayed that the reliefs sought in the Original Application be granted.

Per contra, learned counsel appearing for the respondents, placing reliance upon the averments contained in the reply statement, submitted that the Department of Personnel and Administrative Reforms (DPAR) had operated the waiting list for filling up vacancies that arose in the post of Upper Division Clerk on account of candidates not appearing for certificate verification, failure to join duty and other similar reasons, pursuant to Notification dated 29.12.2016 (R-5).

It was further submitted that certain candidates who had originally been placed in the waiting list for the post of Upper Division Clerk, but had subsequently been appointed in the Judicial Department on 22.08.2016, were also called for certificate verification and were thereafter appointed to the post of Upper Division Clerk. Consequently, vacancies arose in the post of Senior Clerk in the Judicial Department, as the said candidates resigned from their posts in the Judicial Department and joined as Upper Division Clerks under the Government of Puducherry. In view of the resultant vacancies, the Judicial Department operated the merit list further for filling up the vacancies under the respective categories.

Learned counsel further submitted that, pursuant to the posting orders issued vide Memorandum dated 18.01.2018, three candidates belonging to the OBC category were appointed as Senior Clerks in various Courts in the Union Territory of Puducherry. The second respondent, Thiru. V.K. Sarath, was one among the candidates selected under the OBC category from the overall merit list furnished by the DPAR. It was therefore contended that there was no question of the second respondent having been appointed by overlooking the claim of the applicant in the Unreserved category. In this regard, learned counsel pointed out that Thiru. V.K. Sarath, the second respondent herein, was placed at Sl. No.58 in the merit list furnished to the Judicial Department and was selected against a vacancy earmarked for the Other Backward Classes (OBC) category. On the other hand, the applicant, who was placed at Sl. No.56 in the said merit list and belonged to the Unreserved category, was not selected, as he did not fall within the zone of consideration for appointment against the vacancies available in the Unreserved category. Thus, according to the respondents, the appointment of the second respondent was made against a vacancy in the OBC category and had no bearing upon the applicant's claim in the Unreserved category.

Learned counsel appearing for the respondents also raised a preliminary objection regarding the maintainability of the Original Application. He submitted that the impugned appointment order, which is sought to be quashed by the applicant, was issued by the Judicial Department. However, the Judicial Department has not been impleaded as a party respondent in the present Original Application. In the absence of the concerned Department, which is the authority that issued the impugned order, the prayer seeking quashing of the said appointment order is not maintainable in law. On the aforesaid grounds, learned counsel for the respondents submitted that the applicant has failed to establish any legally enforceable right to appointment and, consequently, prayed for dismissal of the Original Application.

Heard the parties, perused the pleadings and the materials available on record.

There is no dispute with regard to the material facts of the case. From a perusal of the records, it is evident that the waiting list was operated for filling up the vacancies that arose under various categories on account of candidates not appearing for certificate verification, failure to join duty pursuant to the offer of appointment, and resignation from service within one year from the date of appointment. Against the vacancies so arising within the 503 notified vacancies, candidates up to Sl. No.15 in the General category of the waiting list were provisionally selected. It is also evident from the records that only two vacancies under the General category remained unfilled within the notified vacancies. Therefore, the applicant, whose name stood at Sl. No.55 in the waiting list under the General category, had no reasonable prospect of being considered for appointment to the post of Upper Division Clerk against the notified vacancies.

The applicant's principal contention is that, while his name stood at Sl. No.55 in the waiting list under the Unreserved (U.R.) category, the second respondent, whose name stood at Sl. No.57 in the waiting list, was subsequently issued an appointment order dated 18.01.2018 for appointment to the post of Senior Clerk in the Judicial Department, Puducherry. According to the applicant, such appointment, having been made in favour of a candidate placed below him in the waiting list, amounts to overlooking his legitimate claim. However, the records disclose that the Respondent Department (DPAR) had operated the waiting list for filling up vacancies that arose in the post of Upper Division Clerk due to non-appearance of candidates for certificate verification, non-joining of candidates after issuance of the offer of appointment and other consequential vacancies, pursuant to Notification dated 29.12.2016. It is further seen that certain candidates who had originally figured in the waiting list for the post of Upper Division Clerk were, in the meantime, appointed in the Judicial Department on 22.08.2016. Subsequently, those candidates were called for certificate verification and appointed to the post of Upper Division Clerk. Their consequent relinquishment/resignation from the posts held in the Judicial Department resulted in further vacancies in the said Department, necessitating further operation of the merit/waiting list for filling up such resultant vacancies.

On a careful consideration of the records, we find that the second respondent, Thiru. V.K. Sarath, who was placed at Sl. No.58 in the merit list furnished to the Judicial Department, was selected for appointment against a vacancy earmarked for the Other Backward Classes (OBC) category. On the other hand, the applicant, Thiru. K. Srinivasa Raghavan, who was placed at Sl. No.56 in the said merit list and belonged to the Unreserved category, was not selected, as he did not fall within the zone of consideration for appointment against the vacancies available under the Unreserved category. Thus, the appointment of the second respondent cannot be said to have been made by overlooking or superseding the claim of the applicant. The mere fact that the second respondent was placed below the applicant in the overall merit/waiting list does not confer upon the applicant any enforceable right to appointment, particularly when the second respondent was considered and selected against a vacancy earmarked for a different category. Consequently, the applicant has failed to establish any illegality, arbitrariness or discrimination in the appointment of the second respondent warranting interference by this Tribunal.

The question that arises for consideration is whether a candidate whose name finds place in the waiting list acquires an indefeasible or enforceable right to seek appointment against the vacancies that may arise subsequently.

In this regard, reliance has been placed on the judgment of the Hon'ble Supreme Court in State of Karnataka & Ors. v. Smt. Bharathi S., Civil Appeal No.3062 of 2023, decided on 19.05.2023 and reported in 2023 INSC 573. In the said case, the Hon'ble Supreme Court held that the obligation to fill up vacancies from the Additional List (waiting list) would arise only where there is a specific and mandatory provision to that effect under the applicable ^{Rules. In the absence of any such mandatory provision, the decision}Central Administrative Tribunal as to whether the vacancies should be filled from the Additional List is within the discretion of the State/appointing authority. Similarly, in The State of Uttar Pradesh v. Karunesh Kumar & Others, Civil Appeal Nos.8822-8823 of 2022, decided on 12.12.2022, the Hon'ble Supreme Court reiterated that an employer is vested with an element of discretion and flexibility in the matter of selection and appointment of candidates. Judicial interference is warranted only where the decision is shown to be arbitrary, illegal or contrary to the applicable rules. The relevant observation of the Hon'ble Supreme Court is that an employer shall have adequate discretion, coupled with an element of flexibility, in selecting an employee and that interference can be made only when the selection is arbitrary or contrary to law.

The ratio emerging from the aforesaid judgments is that mere inclusion of a candidate's name in a waiting list does not, by itself, confer any vested, indefeasible or enforceable right to appointment. A waiting list is ordinarily intended to operate for the purpose of filling vacancies that may arise in accordance with the applicable recruitment rules and administrative instructions. Unless the ^{governing rules impose a mandatory obligation upon the appointing}Central Administrative Tribunal authority to operate the waiting list and make appointments therefrom, a candidate included in such list cannot claim appointment as a matter of right.

It is equally well settled that the mere existence of vacancies does not confer an automatic right upon a candidate in the waiting list to seek appointment. The State or the appointing authority retains discretion as to whether, and to what extent, the vacancies are required to be filled, subject, of course, to the requirements of the applicable statutory rules and the principles of non-arbitrariness and fairness under law. Applying the aforesaid principles to the facts of the present case, we find that the applicant's placement in the waiting list, by itself, did not confer upon him an indefeasible right to appointment to the post of Upper Division Clerk. The records further disclose that the waiting list was operated by the competent authority in accordance with the vacancies arising under the respective categories and the applicable recruitment process. There is no material before us to establish that the respondents were under any ^{mandatory obligation to appoint the applicant merely on account of}Central Administrative Tribunal his position in the waiting list.

We also find no material to establish that the action of the respondents in operating the waiting list or in appointing the second respondent was arbitrary, discriminatory or contrary to the applicable rules. The mere fact that the applicant was placed at a higher position in the waiting list than the second respondent does not, in the circumstances of the case, confer upon him a superior or indefeasible right to appointment, particularly when the second respondent was considered and appointed against a vacancy belonging to a different category.

In view of the settled legal position enunciated by the Hon'ble Supreme Court, we hold that a candidate included in a waiting list does not acquire an indefeasible right to appointment merely by virtue of such inclusion. In the absence of a specific mandatory rule requiring appointment from the waiting list, the matter remains within the discretion of the competent authority, subject to such discretion ^{being exercised in accordance with law and without arbitrariness or}Central Administrative Tribunal discrimination. The applicant, therefore, cannot claim appointment as a matter of right merely on the basis of his position in the waiting list.

In the result, the OA is dismissed as devoid of merits. No order as to costs.