Mayank Bajpai vs State Of Madhya Pradesh & Another

The petitioner has filed the present petition praying for a direction to the respondents to issue appointment order in favour of the petitioner for the post

of Revenue Inspector with all consequential benefits as well as for quashing the order dated 12.07.2017 (Annexure-P/5).

Brief facts of the case are that the petitioner had appeared in the examination held by the VYAPAM for appointment on the post of Revenue

Inspector in the Revenue Department of the State Government. The select list was published in respect of 371 candidates and consequential

appointment orders were issued on 10.08.2014, 14.08.2014, 19.10.2015 and 01.08.2016. A waiting was also prepared in which name of the petitioner

was placed at Sr. No. 1 in the general category and the petitioner was proposed to be posted at District Sagar. As per Clause-14 of the gazette

notification dated 04.10.2013, the select list was to remain operative for a period of 18 months, which was to expire in the instant case on 19.12.2016.

Before expiry of the select list, respondent No. 2 issued an order dated 16.12.2016 to the candidates including the petitioner in the waiting list to

appear in the office of respondent No. 2 on 26.12.2016 for verification of the documents. The petitioner appeared in the office of respondent No. 2 on

26.12.2016 and documents were verified. Thereafter, proposal for appointment was moved by respondent No. 2 to respondent No. 1 on 29.12.2016

for due approval through single file. When the approval was not received, a reminder was sent by respondent No. 2. Thereafter, the petitioner and

other waiting list candidates visited the office of respondent No. 2 to enquire about issuance of the appointment orders and they were told that the

appointment orders will be issued as soon as the approval is received from respondent No. 1. Thereafter, the petitioner came to know that respondent

No. 1 is reluctant to give approval on the ground that the validity of the select list has expired. Being aggrieved by this, the present petition has been

filed by the petitioner.

Learned counsel for the petitioner submits that the appointment to the petitioner cannot be denied on the ground that the validity of the select list has

expired. The proposal forwarded by respondent No. 2 to respondent No. 1 has been rejected vide order dated 12.07.2017 on the ground that the

period of 18 months was fixed for validity of the select list in the examination Rules of 2013. It has further been submitted that the validity of the select

list was to be expired on 19.12.2016 and before expiry of the select list the orders were issued for verification of the documents by respondent No. 2

i.e. on 16.12.2016 i.e. before expiry of select list. He further submits that once the documents are verified, then process for appointment had

commenced, hence, it cannot be said that the select list has expired. He further argues that the delay in issuing the appointment order on the part of

the respondents for which the petitioner cannot be punished for no fault on his part. He further submits that large number of vacancies in the cadre of

Revenue Inspector are lying vacant. In such circumstances, he prays that the petition may be allowed.

The respondents have filed their reply and in the said reply, the respondents have stated that as per the gazette notification dated 04.10.2013, the

select list was to remain operative for a period of 18 months and was to expire on 19.12.2016. Prior to the expiry of the select list, respondent No. 2

issued a letter on 16.12.2016 to the candidates of the waiting list including the present petitioner to appear in the office of respondent

No. 2 on 26.12.2016 for verification of the documents. The petitioner appeared in the office of respondent No. 2 on 26.12.2016 and after verification

of the documents, a proposal was sent by respondent No. 2 to respondent No. 1 for due approval. However, respondent No. 1 has refused to give

approval on the ground that the validity of the select list has expired. Thus, since the petitioner could not be appointed prior to the expiry of validity of

the select list, no right is created in favour of the petitioner to claim appointment merely on the basis of his name in the waiting list. The appointment is

considered to have begun from the date when the appointment order is issued and it cannot be stated that since the process has started, it creates any

right in favour of the petitioner. She further submits that the petitioner who is a candidate from the waiting list has no right to claim appointment and

the mere inclusion of his name in the waiting list does not confer any right for appointment. She further relied on the judgement passed by theÂ

Apex Court in the case of Gujarat State Dy. Executive Engineers Association Vs. State of Gujarat, reported in 1994 Supp (2)

SCC 591. She further relied on the judgement passed by the Co-ordinate Bench of this Court in W.P. No. 3977/2013 (Rajyanand Gautam Vs. State

of M.P. & Ors. and other connected writ petitions), dated 30.07.2015. She, therefore, prays that the petition may be dismissed.

Heard learned counsel for the parties and perused the record.

In the present case, the petitioner has applied for appointment on the post of Revenue Inspector. The petitioner appeared in the examination and

was placed at Sr. No. 1 in the waiting list. Although, the petitioner was placed at Sr. No. 1 in the waiting list and no appointment order was issued in

his favour he approached to the respondents. At that time, respondent No. 2 orally told to the petitioner that respondent No. 1 has refused to give

approval for appointment of the petitioner on the ground that validity of the select list has expired. During the pendency of this writ petition, the

respondents have passed an order dated 12.07.2017 thereby rejecting the proposal sent by respondent No. 2 for appointment of the petitioner on the

post of Revenue Inspector on the ground that validity of the select list has expired. The State Government has framed the Rules known as Madhya

Pradesh Junior Service (Joint Qualifying) Examination Rules, 2013. These Rules are applicable to all the department of the State Government. The

Rule 14 of the said Rules provides for duration of validity of the final list of successful candidate. As per the said rules, the final list of the successful

candidates in the examination in any recruitment year shall be valid upto 18 months from the date of declaration of the final list.

In the present case, the select list was to remain operative for a period of 18 months i.e. upto 19.12.2016. Prior to expiry of the select list,

respondent No. 2 issued a letter dated 16.12.2016 to the candidates of the waiting list including the present petitioner to appear in the office of

respondent No. 2 on 26.12.2016 for verification of the documents. Accordingly, the petitioner appeared in the office of respondent No. 2 for

verification of the documents and after verification of the documents, a proposal was sent by respondent No. 2 to respondent No. 1 for approval.

However, respondent No. 1 has refused to give approval to the said proposal on the ground that the validity of the select list has already been expired.

The Co-ordinate Bench of this Court in a W.P. No. 3977/2013 in paragraphs 11 and 12 has held as under;-

“11. Shri D.P.Singh although contended that because of calling the petitioner in counseling and because of police verification, his case is on better

footing. I do not see any merit in the said contention. Fact remains that petitioner is a wait list candidate. Merely because he was called in counselling

or subjected to verification, he will not take a frog leap and will find place in the merit list. In 2004 (2) SCC 681 (Bihar State Electricity Board Vs.

Suresh Prasad and Ors.) the Apex Court opined that no rule was shown in support of argument that when certain candidates failed to turned up, the

employer was bound to offer the post to the candidates in the waiting list. The judgment of High Court, rejecting the claim of waiting list candidates

was affirmed.

Shri Amit Lahoti has also made effort to distinguish his case from Ritu Mangal (supra). However, there is no such distinguishing feature

because fact remains that all the petitioners were candidates in the same selection. The Division Bench opined that life of select panel is

over. It is further held that there is no enforceable right to seek appointment on the basis of waiting list. I do not find any such distinguishable reason in

the present matter. I am bound by the order of Indore Bench in Ritu Mangal (supra).â€​

In the present case also, the petitioner was called for verification of the documents after expiry of validity of the select list.

The Apex Court in the case of Union of India & others Vs. Kali Dass Batish and another, reported in AIR 2006 SC 789 in para 15 has held as

under:-

“15. In this matter, the approach adopted by the Jharkhand High Court commends itself to us. The Jharkhand High Court approached the matter on

the principle that judicial review is not available in such a matter. The Jharkhand High Court also rightly pointed out that mere inclusion of a

candidate's name in the selection list gave him no right, and if there was no right, there could be no occasion to maintain a writ petition for

enforcement of a non-existing right.â€​

Similar view was taken by the Apex Court in the case of Raj Rishi Mehra and others Vs. State of Punjab and another, reported in (2013) 12 SCC

243 as well as in the case of State of Orissa and another Vs. Rajkishore Nanda and others, reported in AIR 2010 SC 2100. In the case of Raj Rishi

Mehra and others (supra) in paras 15 to 17, the Apex Court has held as under:-

“15. The question whether the candidates whose names are included in the waiting list are entitled to be appointed against the unfilled posts as of

right is no longer res integra and must be answered in negative in view of the judgments of this Court in Union of India v. Ishwar Singh Khatri, Gujarat

State Dy. Executive Engineers’ Association v. State of Gujarat and others, State of Bihar v. Secretariat Assistant Successful Examinees Union

1986 and others, Prem Singh and others v. Haryana SEB and others, Ashok Kumar and others v. Chairman, Banking Service Recruitment Board and

others, Surinder Singh and others v. State of Punjab and another, Madan Lal and others v. State of J&K and others, Kamlesh Kumar Sharma v.

Yogesh Kumar Gupta and others, State of J&K and others v. Sanjeev Kumar and others, State of U.P. and others v. Rajkumar Sharma and others,

Ram Avtar Patwari and others v. State of Haryana and others and Rakhi Ray and others v. High Court of Delhi and others.

In Surinder Singh’s case, this Court observed as under (SCC p. 494 para 14:

“14. … '9. 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 appointedÂ

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 orderÂ

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 appointments, 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.' (Gujrat State Dy. Executive Engineers' Assn. Case, SCC p.599, para-

9).â€​

In Rakhi Ray case, this Court referred to a number of judicial precedents and held : (SCC p.641, para 7)

“7. 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 itÂ

amounts to 'improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated

from and such a deviation is permissible only after adopting policy decision based on some rationale', otherwise the exercise would be

arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law.â€​

Thus, as per this judgment, mere inclusion of a candidate in the select list does not create any indefeasible right in favour of the petitioner for

appointment.

In the present case also, the name of the petitioner although included in the select list but no order of appointment was issued in his favour. Before

issuance of appointment order, the validity of the select list was expired. Therefore, the petitioner cannot claim as of right appointment on the post of

Revenue Inspector. Accordingly, I do not find any reason to interfere into the said writ petition.

Accordingly, the writ petition is dismissed without any order as to cost.