Dhanwant Singh and others vs State of Punjab and another

By way of this order I proposed to dispose of above referred

four writ petitions as the facts and the question of law involved in all these

cases are identical. For brevity facts are being extracted from CWP No.

24290 of 2013.

The instant writ petition has been filed under Article 226 of the

Constitution of India seeking issuance of a writ in the nature of mandamus

or any other appropriate writ directing the respondents to issue appointment

letters to the petitioners as Vocational Masters (in their related subjects)

with retrospective effect from 14.01.2012.

In brief, facts are that the petitioners pursuant to an

advertisement issued by the School Education, Department of Punjab on

23.09.2009 applied against 2106 Vocational Masters/ Mistresses. The

petitioners were called for counseling and thereafter were put on the waiting

list. Several candidates who had been issued appointment letters in various

disciplines did not join their duties, despite a public notice dated 24.12.2011

asking them to do so. Since several posts were lying vacant and candidates

did not submit their joining pursuant to the public notice issued, writ

petitions were filed by candidates in the waiting list, seeking directions that

the waiting list should be operated and appointments to be offered to those

who are in the zone of consideration. One such writ petition that came to be

decided on 25.10.2013 was CWP No. 20148 of 2012 titled Venus vs. State

of Punjab and another. During the pendency of this writ petition, another

public notice was issued on 09.01.2013 giving time to the other candidates

who had not joined their duties. The petitioners too filed a writ petition No.

20807 of 2012 titled Dalip Kumar and others vs. State of Punjab and

others seeking a direction to the respondents to issue appointment letters,

which writ petition was disposed of by the High Court directing the

respondents to consider the claim of the petitioners. The matter was

considered and eventually request of the petitioners was declined.

Aggrieved, the instant writ petition has been filed with a prayer that the

unfilled seats which could not be consumed by the selected candidates in

the main select list should be filled and appointment letters issued.

Per contra, learned counsel appearing on behalf of the

respondents-State submits the writ petitioners cannot claim the benefit of

the judgment rendered in Venus case (supra) decided on 25.10.2013 as the

waiting list was scrapped on 09.08.2013. Reliance has also been place upon

a judgment rendered in Sukhwinder Singh and others vs. State of Punjab

and others, CWP No. 6031 of 2014, decided on 29.04.2016 where the

similar relief sought for was declined.

I have heard learned counsel for the parties and perused the

record of the case.

Admittedly, the petitioners herein had applied pursuant to the

advertisement that was issued in 2009. After the counseling was held, they

were put in the wait list . The only plea in the writ petition is that a direction

be issued to the respondents to fill up the unconsumed seats by operating

the wait list that was prepared subsequent to the counseling. In this regard,

learned counsel for the petitioners relied upon a similarly situated candidate

Venus, who was on the wait list, and the judgment rendered in Venus''s

case (supra) decided on 25.10.2013 gave directions for appointment. In the

instant case, after the High Court had directed the respondents to consider

the case of the petitioners, it had been decided on 02.04.2013 that the claim

of the petitioners would be considered at a later stage when the process of

issuance of appointment letters to selected candidates is complete and

thereafter the process of filling subsequent vacant posts would start.

Subsequently, the government in its wisdom decided to scrap the wait list

and, therefore, issued a fresh advertisement.

It is to be noted that the petitioners, though having requisite

qualifications were on the wait list. The petitioners only have a right of

consideration and no vested right of appointment as such. In a similar matter

that came up for hearing in the case of Sukhwinder Singh and others

(supra) a similar prayer had been made by the candidates who were on the

wait list pursuant to counseling for the posts advertised in the year 2009

advertisement, learned Single Bench came to hold that the petitioners would

have no right to ask for the wait list to be operated and appointments offered

keeping in view the fact that the State had already withdrawn the offer as far

back as on 09.08.2013.

The contention of learned counsel for the petitioners herein is

that they would be covered by the judgment rendered in Venus case (supra)

wherein a similarly situated candidate had approached this Court and a

Single Bench of this Court had directed appointment to be offered which

decision has been upheld upto the Apex Court, is an argument which has no

merit. The judgement rendered in Venus''s case (supra) is distinguishable as

what weighed with the court was that there was discrimination and wait list

had been operated for some candidates in the backward class category. The

fact that the wait list had been scrapped was probably not in the notice of

the court .

The judgment rendered in Sukhwinder Singh''s case (supra) notes

that the candidates on the wait list do not have an indefeasible right to be

selected. The petitioners herein have tried to distinguish the judgement

rendered in Sukhwinder''s case by submitting that the aforementioned case

was decided primarily on the ground of delay, since the petitioners therein

had approached this court only after the judgment rendered in Venus''s

cases, whereas the petitioners herein had approached the courts well in time

before the judgment rendered in Venus''s case (supra). However , a reading

of the judgment referred to above would reflect that the Single bench was

conscious of the law laid down regarding the rights of a candidate who was

on the wait list. The law is well settled by the Constitutional Bench of the

Apex Court in Shankarsan Dash vs. Union of India 1991(3) SCC 47,

wherein it has been held that a wait listed candidate does not have an

indefeasible right of appointment and the State is under no legal duty to fill

up all the vacancies. The only exception made out was that the State should

not act in an arbitrary manner. Relevant observations made therein reads as

under :

"7. 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 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 correct position has been consistently followed by this

Court, and we do not find any discordant note in the decisions

in State of Haryana v. Subhash Chander Marwaha and Others,

(1974) 1 SCR 165, Miss Neelima Shangla v. State of Haryana

and Others, (1986) 4 SCC 268, or Jitendra Kumar and Others

v. State of Punjab and Others, (1985) 1 SCR 899."

In a recent judgment reported as Raj Rishi Mehra and others

vs. State of Punjab and another 2013(2) SCC 243 it has been held that a

person who is on the wait list do not have a right to be appointed against the

unfilled posts. Para 15 of the same reads as under :-

"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 1992 Supp (3) SCC

84, Gujarat State Dy. Executive Engineers'' Association v. State

of Gujarat and others 1994 Supp (2) SCC 591, State of Bihar v.

Secretariat Assistant Successful Examinees Union 1986 and

others (1994) 1 SCC 126, Prem Singh and others v. Haryana

SEB and others 1996) 4 SCC 319, Ashok Kumar and others v.

Chairman, Banking Service Recruitment Board and others

(1996) 1 SCC 283, Surinder Singh and others v. State of

Punjab and another (1997) 8 SCC 488, Madan Lal and others

v. State of J&K and others (1995) 3 SCC 486, Kamlesh Kumar

Sharma v. Yogesh Kumar Gupta and others (1998) 3 SCC 45,

State of J&K and others v. Sanjeev Kumar and others (2005) 4

SCC 148, State of U.P. and others v. Rajkumar Sharma and

others (2006) 3 SCC 330, Ram Avtar Patwari and others v.

State of Haryana and others (2007) 10 SCC 94 and Rakhi Ray

and others v. High Court of Delhi and others (2010) 2 SCC

637."

In a recent case of State of J&K & Ors. Vs. Sat Pal reported as

2013 (11) SCC 737 while upholding appointment as directed by the High

Court to a wait listed candidate, their Lordships recognised that "It would

be a different legal proposition, if the appointing authority decides not to

fill up an available vacancy, despite the availability of candidates on the

waiting list."

As has been held in the case of Loveleen Kaur vs. State of

Punjab and others, LPA No. 1781 of 2014 decided on 03.11.2014, that a

selection process cannot be kept pending till eternity so as to confer right on

the applicants for appointment. No doubt there are judgments to the effect

that if a person is on the wait list, he should be considered for appointment

in case the posts remain vacant, but in the case in hand, a conscious

decision had been taken by the State government to scrap the wait list .

Therefore, while relying on the aforesaid judgments to hold that

a person who is on the wait list would not have an indefeasible right to

appointment and the observations made in Loveleens Kaur''s case that the

selection process has to attain finality and cannot be kept open ended, these

writ petitions stand dismissed.