Ishwar Sharan Gupta vs State of Chhattisgarh and Another

This is a writ appeal against the order of the single Judge dated 01.02.2013 dismissing the Writ Petition (S) No. 1475 of 2012 filed by Shri Ishwar Sharan Gupta (the Appellant) for setting aside the orders dated 15.02.2012 and 27.01.2012 refusing to appoint him on the post of the Additional District Prosecution Officer (the ADPO) on the ground that the Public Service Commission (the PSC) has refused to extend the validity of the select list.

THE FACTS

The PSC advertised for filling up 74 posts of the ADPO on 07.03.2008. Subsequently, number of posts were increased to 99. The Appellant was one of the applicants in the examination.

The PSC held written examination on 24.08.2008 and the interview was held on 12.03.2010. Subsequently, the PSC published a select list of 99 candidates on 05.05.2010. A letter dated 11.05.2010 along with the recommendation of the 99 candidates was sent for appointment.

The State Government wrote a letter dated 03.05.2011 to the PSC stating therein that out of the 99 candidates 80 candidates have joined, however, 19 persons could not join as the proceedings for character verification and caste certificate verification are still going on. The State Government requested for extension of the period of validity of the select list by three months as the same was expiring on 04.05.2011.

On 04.05.2011, the State Government wrote another letter to the PSC indicating therein that out of 99 candidates, 7 candidates had not joined and it requested the PSC to send category-wise list of 7 more names (5 unreserved and 2 reserved) for appointment on the post.

The PSC by its letter dated 03.06.2011 not only extended the validity of the select list for a period of three months i.e. 04.05.2011 to 04.08.2011 but also sent 7 names from the supplementary/waiting list.

Shri Alok Shrivastava was the last unreserved candidate recommended by the PSC in the supplementary/waiting list. Shri Rakesh Mani Tiwari was next in the supplementary/waiting list. Both of them wrote letters dated 01.07.2011 to the State Government that they are not interested in joining the service as they have joined the service in Madhya Pradesh.

The state Government sent a letter dated 12.07.2011 to the PSC requesting it to send one more name in the unreserved category below Shri Rakesh Mani Tiwari for appointment.

The PSC old not send the name but asked for some information by letter dated 06.09.2011. The State Government sent the information and again requested by letters dated 28.09.2011, 18.10.2011 to send one more name.

Ultimately, on 03.11.2011, the PSC recommended the name of the Appellant. The State Government thought that the validity of the supplementary list was up to 04.11.2011 and requested the PSC by letters dated 09.11.2011, 17.11.2011, 23.11.2011 and 03.12.2011 to extend the validity for appointment of the Appellant.

The PSC passed a resolution on 11.01.2012 refusing to extend the validity on the following grounds:

� The validity of the main select list was one year and was extended for a period of three months, it was up to 04.08.2011 (including the extended period);

� The validity of the supplementary list was for one and half years, and was up to 03.11.2011. It has also come to an end;

� The process for recruitment of fresh ADPOs is under consideration.

The PSC sent a letter dated 27.01.2012 to the State Government informing its inability to extend the validity. The State Government on the basis of the letter of the PSC informed the Appellant by the letter dated 15.02.2012 that he cannot be appointed as the validity of the list was not extended by the PSC.

Aggrieved by the aforesaid order, the Appellant filed Writ Petition (S) No. 1475 of 2012. It was dismissed essentially on the ground that a person in the select list has no right to claim appointment and the subsequent recruitment process had already started. Hence, the present appeal.

SUBMISSIONS OF THE PSC

We have heard counsel for the parties. The counsel for the PSC submits that:

(i) A person in the select list has no indefeasible right to be appointed and no writ petition lies for his appointment;

(ii) The vacancy has to arise within the period of one year of the validity of the select list and only during that period the supplementary/waiting list can be invoked;

(iii) Under the standing order dated 03.09.1997, validity of the select list is for one year and at the most it could be extended for a period of six months. It was extended once for a period of three months and it cannot be further extended. In any case, no appointment can be made after 18 months;

(iv) There is provision extending the validity of; the main select list but there is no provision for extension of validity of the supplementary/waiting list and it cannot be extended.

THE DECISION

The counsel for the State states that the State has no objection in appointing the Appellant and the objection, if any, is because the PSC refused to extend the validity of the list. Let us consider the submissions of the PSC as well as the one relied by single Judge, while dismissing the writ petition.

Fresh Recruitment Has Not Started

Apart from other reasons for refusal, the PSC in its resolution dated 11.01.2012 has mentioned that the fresh recruitment process is under consideration. The single Judge in the impugned order dated 01.02.2013 has held that as the recruitment process has started, no appointment can be made.

It is admitted case that the recruitment process has not started. It was wrongly assumed by the single Judge. This cannot be a ground for denying relief to the Appellant.

In the reply filed by the PSC, as well as in its resolution, it is stated that process is under consideration. But neither any statutory law, nor any decision has been brought to our notice that merely for this reason appointment can be refused.

It appears that, for the aforesaid reason, the counsel for the PSC did not raise objection to relief being granted to the Appellant but pressed the four submissions mentioned under the heading ''SUBMISSION OF THE PSC.''

1st Submission: Appointment cannot be arbitrarily refused

Candidates pay examination fees; prepare for the test; spend time; and make effort. This cannot put in waste paper basket or defeated merely on the whims of the appointing authority. There has to be some reasons -- be it illegality in the selection, or wrong application of roster, or wrong interpretation of rules -- for non-appointment.

It is correct that a person in the select list has no right to be appointed. Nevertheless, an appointment cannot be declined unless there is a reason for the same: it cannot be arbitrarily refused. If it is so done, it will violate Article 14 of the Constitution.

In view of above, there is no merit in the first submission of the counsel for the PSC. It is negated. The counsel for the PSC submits that the remaining three submissions are the reasons for non-appointment of the Appellant. Let us consider if they are valid.

2nd Submission: Vacancy did arise within time

A selected candidate can be appointed provided the select list is valid. Thus, it cannot be said that the vacancy has to arise within a year however, it has to arise within the validity of the main select list.

The main list was published on 05.05.2010. It was valid for one year, namely up to 04.05.2011. The State Government did write a letter on 04.05.2011, within a year from date of publication of the main list, requesting the PSC that seven candidates had not joined and seven names be sent. This was within a year.

The validity of the main select list was extended for the period of three months by the PSC. It became valid up to 04.08.2011. The State Government sent another request on 12.07.2011 to send one more name. It is within this extended period. All names were sent within the validity of the main list. In view of this, there is no merit in the second submission of the PSC.

3rd and 4th Submissions: Supplementary List Valid for 18 months from Publication

The standing order dated 03.09.1997 is on record. It is in Hindi but we wish that it was clearer. It nowhere uses the word ''waiting list''; it uses the word ''anupurak suchi'', which means supplementary list. It is for this reason that we have used the word supplementary/waiting list in this judgment.

The first paragraph of the standing order dated 03.09.1997 states that the validity of the select list and the supplementary/waiting list is for one year and 18 months, respectively. However, it is not clear from the standing order from which date, the period of validity starts. In absence of any clear provision, it should be from the date of its publication.

In the present case, the main select list was published on 05.05.2010. The period of one year for the main select list starts from 05.05.2010. However, no supplementary/waiting list was published on 05.05.2010. In absence of the same, the period of 18 months for the supplementary/waiting list cannot start from this date. It has to start from the date on which the supplementary/waiting list was published. The question is, on what date it was published.

The PSC sent seven names to the State Government on 03.06.2011-It can be said that the list of these seven names was published on this date.

The name of the Appellant was sent on 03.11.2011. His name, at the most, could be said to be published on this date and it would be valid for 18 months from 03.11.2011.

In pursuance of the letter of the PSC dated 03.11.2011, the State Government requested the PSC on 09.11.2011 to extend the period of validity to complete the formalities in respect of the Appellant.

The period-18 months had not expired on 09.11.2011 in respect of supplementary/waiting list dated 03.11.2011. The State Government wrongly assumed that the period had expired and on this wrong assumption unnecessarily requested the PSC to extend the validity. The State Government should have proceeded to complete the formalities for appointment.

The main thrust of the counsel for the PSC was that:

� The select list was published on 05.05.2010 and this should be treated as date for supplementary/waiting list;

� The period of eighteen months was over on 04.11.2011; and

� No appointment can be made from supplementary/waiting list after 04.11.2011.

We have already negated the argument by holding that period of eighteen months will start from the date of publication of the supplementary/waiting list and as no supplementary/waiting list was published on 05.05.2010, it cannot start from this date. Even if this submission of the counsel for the PSC is accepted, relief cannot be denied to the Appellant.

It is admitted that the State Government wrote a letter dated 12.07.2011 to the PSC to send one more name. The PSC procrastinated the matter and sent the same on 03.11.2011. It is a day before the period of eighteen months as assumed by the PSC was expiring. Had the PSC been vigilant and sent the name within reasonable time in July or even August, 2011, the appointment could be made. Sending the name so late and then objecting it on the ground of delay caused by it is an arbitrary and unreasonable conduct.

No one can take shelter behind its own unreasonableness and arbitrariness; especially a constitutional authority that is bound to follow fundamental rights.

In the aforesaid circumstances, the PSC should have itself excluded the time from 12.07.2011 (when State wrote the letter) till 03.11.2011 (when it sent the name) and ought to have extended the validity at least excluding this period.

However, as we have held, it was not necessary for the State Government to seek extension of the validity of the list containing Appellant''s name on 03.11.2011; it was valid. The State Government could have appointed the Appellant without obtaining any extension till 02.12.2012 as 18 months from date of publication of the Appellant''s name was expiring on this date.

In our opinion, in case the State Government was under a misconception that it cannot appoint a person unless the validity of the list was extended by the PSC and does not appoint him for this reason then its penalty cannot be imposed upon the Appellant: he cannot, be denied appointment on this ground.

The appointment to the Appellant has been denied unreasonably for no fault of his. Firstly, the PSC unnecessarily delayed in sending the name and then the State Government wrongly assumed that list was not valid unless the PSC extended its validity. In our opinion it is a fit case in which, a direction should be issued to the State to appoint the Appellant if he is otherwise fit and there is no other objection.

SOME SUGGESTIONS

One can see the entire matter with different angle. One can take judicial notice of the fact that there is acute shortage of ADPOs in the State. The last recruitment was of the year 2008 for which the interviews were held after two years in 2010 and then results were announced. The post of the Appellant is of the year 2008 and the State as well as the PSC has not been able to fill up all seats.

The recruitment process for the next year namely 2009 has not even started. According to the PSC, it is in contemplation. One does not know, how much time will it take and when will it start. We wonder, if in these circumstances, should the PSC behave in this manner and raise technical objections. We leave this here.

The problem in this case arose for the reason that supplementary/waiting list was not published by the PSC along with the main list. According to the counsel for the PSC, it has not done so as the relevant recruitment rules do not mandate it.

The PSC is State within meaning of Article 14 of the Constitution: it has to act fairly and reasonably. It can, frame regulations, pass resolutions for the matters not provided in the statute or the rules.

The publication of waiting list provides intimation to the candidates that they may be appointed in case the successful candidates before them do not join and some successful candidates do not join as they secure brighter future.

Non-publication of waiting list works harshly: it should always be published unless there is prohibition for the same. A constitutional body like the PSC, cannot be excused from publishing it merely on the ground that it is not so mandated by the Rules, it can always resolve to do so in order to obviate injustice.

We wish to add it here that it is always proper to publish a supplementary/waiting list of 10-25% of the vacancies unless there is any prohibition, so that a person who is likely to be appointed may know that he is likely to be appointed. The PSC may consider passing appropriate resolution or framing regulation in this regard.

CONCLUSIONS

Our conclusions are as follows:

(a) Appointment to a person in the select list cannot be arbitrarily refused;

(b) The vacancy had arisen within validity of the select list.

(c) In absence of any provision, the starting date for validity of the main select list or the supplementary/waiting list is from the date the list is published;

(d) In the present case the supplementary/waiting list for the Appellant was published on 03.11.2011 and period of eighteen months will start from this date;

(e) The appointment to the Appellant was arbitrarily denied without there being his fault. It is fit case where direction for his appointment should be issued.

In view of our conclusions, the writ appeal is allowed. We are informed that the character verification as well as medical checkup of the Appellant has already been done. And in case, there is no objection in the same and there is no other objection as well, then the State Government may appoint the Appellant on the post of Additional District Prosecution Officer (ADPO) at an early date, if possible, within a period of three months from the date of production of certified copy of this order.