HIGH COURT OF PUNJAB AND HARYANA
RANJIT SINGH, J.
Suresh Pal v. State Of Haryana
CWP No. 2326 of 2009
17.07. 2009
Service Matter – Waiting list – It dealt with a case where the petitioner sought issuance of a direction to the respondents to appoint him to the post of Assistant Engineer (Civil), for which he had applied and competed but that vacancy remained on account of non-acceptance of the offer by a selected candidate. The prayer was declined and the plea put forward on behalf of the petitioner that selection Board was required to prepare a waiting list in view of the Policy instructions, was not accepted. It was observed that petitioner has not been able to establish if any waiting list was prepared and merely because a waiting list was required to be prepared as per the instructions, would not mean that if the waiting list was not prepared initially, then the same should be prepared and merit seen at this stage.
Mr.R.K.Malik, Senior Advocate with Mr.S.S.Malik, Advocate, for the petitioner. Mr.Yashwinder Singh, AAG, Haryana, for the State.
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Ranjit Singh, J. – The petitioner seeks a writ of mandamus directing the respondents to appoint him to the post of Assistant Engineer (Civil) on the ground that post for which he applied and competed had remained vacant due to non-acceptance of the offer by a selected candidate. Thus, the petitioner has invoked his right to seek appointment to the post on the ground as afore-mentioned.
2. In the year 2006, 44 posts of Assistant Engineer (Civil) were advertised. 4 posts out of these were meant for Backward Class category. Written examination was held on 20.8.2006. The petitioner had qualified in the written examination. He was accordingly interviewed on 30.9.2006. 43 candidates were recommended against 44 posts so advertised on 13.11.2006. It appears that some of the persons had filed a writ petition before this Court and the appointment could not be made because of the stay order passed by the Court. The writ petition was ultimately dismissed on 3.12.2007 and accordingly offer of appointment was made to the selected candidates in the month of December 2007. The petitioner has averred that out of the selected candidate, 5 candidates in the General category, 2 candidates in the Scheduled Caste category and 1 candidate in the Backward Class category did not accept the offer despite the same having been repeatedly made to them. Their claim was accordingly rejected on 30.7.2008 on the ground that they had not accepted the offer of appointment.
3. On 4.8.2008, the petitioner filed a representation, praying that next candidate in order of merit be offered appointment to the extent the selected candidates in each category have not accepted the offer of appointment. As per the petitioner, Engineer-in-Chief requested the Government on 14.8.2008 to make appointments from the candidates next in order of merit. Still, no one has been appointed against these posts. Rather on 7.8.2008, 30 posts of Assistant Engineer (Civil) were again advertised and these 8 posts, which had remained unfilled, have been included in the posts now advertised. The petitioner accordingly has filed this writ petition, staking his claim for appointment on the basis of his selection in the category of Backward Class.
4. In the reply filed by the State, the claim of the petitioner has been contested. It is pointed out that there are no Government instructions for preparing a waiting list of Group-B posts and in this regard, certain communications have been placed on record with the reply. Reference is made to a letter dated 1.7.2008 (Annexure R2/1), which is an intimation sent by the Chief Secretary that there are no instructions to maintain a waiting list. It is accordingly stated that the Haryana Staff Selection Commission did not prepare any waiting list. Reference is also made to a letter dated 18.12.2006 through which the Commission had sought information from the Chief Secretary in regard to preparation of waiting list for Group-B posts. At that time, the Commission was informed that in case any candidate did not assume charge of his duty or if any vacancy remained unfilled, the department may ask the Commission to recommend the name of next candidate in the respective category but finally the Chief Secretary, through letters dated 5.2.2007 and 1.7.2008 had clarified that the government did not feel the necessity of maintaining any waiting list in respect of Group-B posts.
5. The respondent-Commission would also contend that instructions dated 7.10.1998 (Annexure P-6) and the judgment passed in CWP No.13101 of 2005, relied upon by the counsel for the petitioner is not applicable to the facts of the present. As per the respondents, the instructions relate to recruitment of Class-III posts and would not have any bearing for maintaining waiting list for Group-B posts. They have, thus, distinguished the instructions and the judgment. It is also pleaded that a selected candidate has no right to seek an appointment. Thus, it is prayed that the relief claimed in the writ petition be declined.
6. The petitioner has filed replication through which he has placed on record another instructions dated 28.10.1993, Annexure P-
7. It is stated that the assertions made by the respondents that there were no instructions for either preparing a waiting list or recommending the names therefrom are on the face of it wrong. Reference is then made to Annexure P-7, which says that in addition to original list, H.P.S.C. shall prepare a waiting list alike S.S.S.B of 25% candidates for additional 25 vacancies and 15% for vacancies 25 to 50 and 10% for vacancies above 50 and a minimum of 2 candidates and shall send the waiting list to the Department along with the original list. In these instructions, it is further provided that the original list sent by the H.P.S.C. shall be valid only for six months and all the Departments shall complete the process of filling vacancies out of original list within six months. Validity of the original list shall then lapse after six months and on completion of the original list, waiting list shall be valid for another six months. It is then stated that appointment from the waiting list shall be made only when the original list is exhausted and the vacancies arising within six months from the date of original recommendation will be filled up only out of waiting list. It is further provided that fresh requisition would be sent to the H.P.S.C. for the vacancies arising after six months.
8. I have heard the learned counsel for the parties.
9. The counsel for the petitioner was quite vehement in his submissions to urge that the candidate next in the merit is required to be appointed against those posts, which had remained unfilled on account of non-acceptance of offer of appointment made to the selected candidates. In support, he has referred to the cases of Vinay Singh Vs. State of Haryana, 1993 (1) SLR 166, Gopi Chand & Another Vs. State of Haryana & Others, 1996 (1) AIJ 148 and Raghbir Chand Sharma Vs. State of Punjab and another, 1992 (1) RSJ 195. In Vinay Singh’s case (Supra), the petitioner was placed at No.8 in the order of merit. When one candidate placed above him in order of merit did not join, this Court held that the petitioner therein was entitled to be considered for appointment against this post. The significant fact in this case, which apparently led to passing of the order, is that the petitioner was in the merit list and was placed at given number. The facts in the present case do not show if any waiting list of the candidates on the basis of merit was made. Rather, the positive stand of the Commission is that no waiting list was prepared. In Gopi Chand’s case (Supra), this Court was of the view that the vacancies occurring on account of candidates not joining service must be offered to the next candidate in merit. This was again a case where a merit list was prepared. It is specifically noticed in this judgment, a fact which was conceded by the respondents therein, that the petitioners were definitely at Sr.No.1 and 2 in the waiting list of the candidates belonging to Scheduled Caste Candidates, who were recommended for appointment as Assistant Excise and Taxation Officer, though the examination was combined competitive examination for recruitment to the posts of Excise and Taxation Officer as well. The direction, thus, in this case was based on these peculiar facts and that the names of the petitioners therein were shown in the merit list at Nos.1 and 2. In the case of Raghbir Chand Sharma (supra) again a waiting list was prepared and in this background, this Court observed that whole idea of keeping the waiting list for a particular period is that if a vacancy arises during that period for any reason, the whole process of selection is not to be undergone once again and the process of selection which has already taken place holds good for that period. In this case also, the name of the petitioner was kept at Sr.No.3 by the Selection Committee and further the Court, while allowing the plea, had relied upon instructions issued by the State of Punjab dated 22.3.1957, which provided that the waiting list should at least last six months and if any vacancy arises from the date of selection, then additional vacancy should be filled up from the waiting list. It is, thus, clear that in all these cases the waiting list had been prepared and in that background, this Court observed that persons wait listed should be appointed and this was on the basis of the policy instructions relevant and prevalent to govern the plea made in these cases.
10. I have perused the pleadings made in the writ petition. It is not even the case set up by the petitioner that there is some waiting list prepared for various categories or that the name of the petitioner is placed at next number in order or merit in the category in which he had competed. The petitioner has filed a petition making plea that next candidate in order of merit be appointed, in all those categories where some posts have remained unfilled. Once the petitioner has not shown any order of merit or that he is in the waiting list and has not even averred if any waiting list was prepared, the ratio of the cases relied upon by the learned counsel would not be applicable in the present case. Rather, the respondents have set up a positive case that no waiting list was prepared as it was not required to be done.
11. The plea of the learned counsel for the petitioner that Selection Board was required to prepare a waiting list in view of the policy instructions, would not help his cause in any manner. The petitioner has not been able to establish if any waiting list was prepared. Merely because a waiting list was required to be prepared as per the instructions, would not mean that if the waiting list was not prepared initially, then the same should be prepared and merit seen at this stage. In fact, the respondents have relied upon a specific clarification sought and answered by the Chief Engineer that the Government did not feel the necessity of maintaining any waiting list in respect of Group-B posts. The observations made in CWP No.13101 of 2005 (Annexure P-5) apparently does not lay down any ratio of law and in that case the writ petition was disposed of with a direction to consider the claim of the petitioner therein in accordance with law. Mere fact that on some earlier occasion, waiting list was prepared as can be seen from Annexure P-8, would not mean that the waiting list ought to have been prepared in the present case as well, especially so when the Chief Secretary had clarified on behalf of the Government that there was no need to prepare waiting list. In fact, the instructions, Annexure P-7, relied upon by the petitioner also give some indication that these instructions shall not be applicable in those cases where selection would be made on the basis of written examination and interview, whether it be for one service or of a combined service and in such cases, no waiting list is to be prepared except those vacancies available/communicated by the Haryana Public Service Commission upto the time of interview. This is so stated in Para 5 of these instructions. It is further provided that if any other vacancy becomes available or not filled up due to any reason out of the list sent by Haryana Public Service Commission or subsequently becomes vacant due to any reason, then that vacancies will be carried forward for the next recruitment. It is also stated that these instructions shall not be applicable where there is specific provision in the rules. Though no specific provision in the rules is pointed out before me in this regard but the stand of the respondent that Government did not require the Commission to prepare a waiting list can not be ignored. Thus, neither it is a case pleaded by the petitioner that he is in the waiting list or that any waiting list was prepared nor the waiting list, in my view, was required to be prepared in view of the specific instructions issued by the Chief Secretary, as has been referred to above. I am, thus, of the considered view that there is no merit in the pleas raised by the petitioner and the ratio of the judgments relied upon by counsel for the petitioner would not be attracted to the facts and circumstances of the present case.
12. The petition is dismissed.