Rahul & Others vs State of Uttarakhand & others

V.K. Bist, J.

Since prayers in all these writ petitions are common and question of law involved in all these writ petitions is also common, therefore, all the writ

petitions are clubbed together and are being decided by a common judgment. Writ Petition (S/S) No. 398 of 2018 shall be the leading case.

Mr. B.D. Kandpal, learned counsel for the Uttarakhand Public Service Commission states that he is adopting counter affidavit filed in WPSS No.

398 of 2018 in all the connected writ petitions.

Petitioners have approached this Court for quashing the order dated 31.01.2018 issued by the Additional Secretary, Secondary Education,

Government of Uttarakhand, Dehradun, whereby, Director of Secondary has been informed that there is no justification of waiting list after two years

of advertisement which was issued in the year 2015. By this letter, the Director of Secondary Education has been asked to send fresh requisition.

On 06.01.2015, an advertisement was issued by the Uttarakhand Public Service Commission (hereinafter referred to as the ‘Commission’),

inviting applications from the candidates for 1056 posts of Lecturer in various subjects. All the petitioners applied for the post of Lecturer in different

subjects. Result was declared. Petitioners’ name did not find figure in the select list. As per Rule 15(3) of the Uttarakhand Special Subordinate

Education (Lecturer’s Cadre), Service Rules, 2008, the Public Service Commission prepared a waiting list of 25 percent of the vacancies and the

petitioners are in that list.

Learned counsel for the petitioners submitted that once the selected candidate does not join the post, the said post should be filled by the candidate

whose name figures in the waiting list. They referred Annexure no.8 of the writ petition, which is a letter written by the Director, Secondary

Education on 15.12.2017, in which it is stated that, against the advertised vacancies of 2015, 109 posts are still unfilled. Similarly, they also referred to

Annexure no.4 in WPSS No.654 of 2018 written by the Director, Secondary Education to the Additional Secretary, Secondary Education in which it is

stated that 31 posts of women category in various subjects are unfilled against advertised vacancies of 2015. By referring these letters, the counsel for

the petitioners submitted that since large number of vacancies are still unfilled, the same should be filled from the candidate whose name figure in the

waiting list.

Learned counsel for the petitioners referred to a letter dated 06.12.2017 written by the Additional Director, Secondary Education, Uttarakhand, in

which it was provided that all candidates, who have not got their certificate verified, by way of last chance, they could contact the office of the

Secondary Education, Directorate, Dehradun on any working day on or before 13. 12.2017, otherwise, it will be assumed that they are not interested in

appointment. By referring this letter, the learned counsel for the petitioners submitted that when 13.12.2017 was the last date when offer was lastly

given to all the candidates for verifying the educational documents, then it will be assumed that the appointment process was not completed by that

date.

Mr. B.D. Kandpal, learned counsel for the ‘Commission’ admits the fact that the waiting list was prepared by the ‘Commission’ and

candidates from the waiting list can be offered appointment within a period of one year. He further submitted that one date cannot be and should not

be treated as last date for the purpose of counting limitation for waiting list candidates as in different subject date may be different. He submits that

the period of one year should be counted from that date when appointment order was issued to the last selected candidate. He further referred to para

11 to the judgment of the Hon’ble Supreme Court in the case of State of Jammu and Kashmir & others vs. Satpal; reported in (2013) 11 SCC

Same is quoted below:

In view of the factual position noticed hereinabove, the reason indicated by the appellants in declining the claim of the respondent Sat Pal for

appointment out of the waiting list is clearly unjustified. A waiting list would start to operate only after the posts for which the recruitment is

conducted, have been completed. A waiting list would commence to operate, when offers of appointment have been issued to those emerging on the

top of the merit list. The existence of a waiting list, allows room to the appointing authority to fill up vacancies which arise during the subsistence of

the waiting list. A waiting list commences to operate, after the vacancies for which the recruitment process has been conducted have been filled up.

In the instant controversy the aforesaid situation for operating the waiting list had not arisen, because one of the posts of Junior Engineer (Civil),

Grade-II for which the recruitment process was conducted was actually never filled up. For the reason that Trilok Nath had not assumed charge, one

of the posts for which the process of recruitment was conducted, had remained vacant. That apart, even if it is assumed for arguments sake, that all

the posts for which the process of selection was conducted were duly filled up, it cannot be disputed that Trilok Nath who had participated in the same

selection process as the respondent herein, was offered appointment against the post of Junior Engineer (Civil), Grade-II on 22.4.2008. The aforesaid

offer was made, consequent upon his selection in the said process of recruitment. The validity of the waiting list, in the facts of this case, has to be

determined with reference to 22.4.2008, because the vacancy was offered to Trilok Nath on 22.4.2008. It is the said vacancy, for which the

respondent had approached the High Court. As against the aforesaid, it is the acknowledged position recorded by the appellants in the impugned order

dated 23.8.2011 (extracted above), that the waiting list was valid till May, 2008. If Trilok Nath was found eligible for appointment against the vacancy

in question out of the same waiting list, the respondent herein would be equally eligible for appointment against the said vacancy. This would be the

unquestionable legal position, in so far as the present controversy is concerned.

I have considered the submission of learned counsel appearing on behalf of the petitioners as well learned counsel for the respondents. In the

present case, three things are undisputed. First, it is not in dispute that the Uttarakhand Public Service Commission has prepared a waiting list of 25

percent of the vacancies in all the subjects. Secondly, various posts in different subjects are still lying vacant. Thirdly, as per law, unfilled posts can be

filled from the waiting list candidates within a period of one year.

The only question which is to be decided by this Court is as to whether the letter issued by the Additional Secretary, Secondary Education,

Government of Uttarakhand is correct or not and from what date the period of one year should be counted for the purpose of issuance of appointment

order to waiting list candidates. Selected candidate has a right to be appointed on the post for which his name has been recommended by the Selection

Committee/Selection Body. Such candidate should be offered appointment by the appointing authority. If selected candidates join the post and

thereafter resign, in that event, those posts cannot be refilled by waiting list candidate, as select list gets exhausted when all selected candidates join.

But, in case, such candidates do not join the post within time, such posts should invariably be filled by giving offer to the candidate who are in the

waiting list. Appointing authority should not go for re-advertisement of the vacant post till waiting list gets exhausted. This will save time. In my view,

the view taken by the Additional Secretary, Secondary Education, Government of Uttarakhand, Dehradun in his letter dated 31.01.2018 is totally

incorrect. The period of one year cannot be counted from the date when advertisement was issued. Waiting list candidates can only be given offer for

appointment only when the selected candidates refuse to join the post. In such event, the period of limitation of one year shall start from that date

when last date for joining is given to last selected candidate. Therefore, the order issued by the Additional Secretary is hereby quashed. Direction is

issued to the respondents to consider the claim of all the petitioners independently by considering their claim for appointment considering the

observation as made as above. The Uttarakhand Public Service Commission is also directed to forward the list of waiting list candidates to the

Government without any delay, if same has not been sent and respondents are directed to give appointment to the waiting list candidates within two

months from the date they receive the recommendation from the Uttarakhand Public Service Commission.

It is pointed out by learned counsel for the petitioners that, in few cases, some candidates have applied for more than one category and they are

offered appointment in all categories. In this regard, it is clarified that if one person joins in one category, the vacancy under other category shall be

filled from the waiting list candidates.

It is also pointed by Mr. B.D. Kandpal that difficulty has arisen, as if a candidate has applied for more than one category and in case the said

candidate is selected for more than one subject, in that event, he has to be given offer for all the subjects for which he has been selected. In such a

situation, it would be better that Commission, while issuing advertisement, should make provision either to the advertisement itself or at the time of

interview when candidates fill up form, asking them to give their preference, so that, while declaring the result, the candidates be selected against the

vacancy of their choice by considering their merit and preference. Public Service Commission is directed to look into this aspect.

All the writ petitions stand disposed of.

There will be no order as to costs.

All pending applications also stand disposed of.

Let a copy of this order be placed in all the connected writ petitions.