Seema Pathak (DR.) vs State of M.P. and Others

S.R. Alam, Chief Justice

The case is called out but none responded on behalf of the petitioner though name of the learned counsel is shown in the cause list. Shri Sanjay Dwivedi, learned Govt. Advocate is however present on behalf of the respondents. It appears from the order-sheets that earlier also on 13-3-2009 nobody appeared on behalf of the petitioner. However, I have perused the record.

In the instant petition, the petitioner has prayed for issuance of a writ or order commanding the respondents to appoint her to the post of Assistant Professor(Zoology) in the services of the State Government under Higher Education Department on the basis of her selection made by the Madhya Pradesh Public Service Commission (for short ''MPPSC) retrospectively from the date adhoc appointees have been regularised after the selection of the petitioner by the PSC besides to grant all consequential benefits accrued on account of her appointment on the post such as increments, arrears of pay, seniority, promotion etc.

The short facts as appears from the pleadings of the parties are that the petitioner being eligible for selection and appointment to the post of Assistant Professor (Zoology) appeared in the examination for selection to the aforesaid post conducted by the MPPSC in 1992-93 and was placed at serial No. 16 of the waiting list. As per the statement made in the return of the respondents, there were only 31 vacancies which have already been filled up on the basis of the selection made by the MPPSC vide order dated 17th September, 1993 and since the petitioner was at serial No. 16 in the waiting list and there being no vacancy left after appointing the candidates from the main list, the wait list candidates were not required to be considered for appointment.

The grievance of the petitioner in this petition is misconceived and based on the conception that since she is included in the waiting list has a right to be given appointment which is totally contrary to the law. In the writ petition no where it has been claimed or asserted nor any material has been placed on record to show that she was selected on merit and was assigned position in the main list. In Para 6.3 of the writ petition, the petitioner has stated that she was kept in the waiting list at serial No. 16 and about 31 candidates have been given appointment by the State Government vide order dated 17th September, 1993. In para 6.6 of the petition, it has been claimed that the petitioner made a representation to the State Government pointing out that the posts are lying vacant against which adhoc appointees are being regularized. In the return, the respondents have denied the statements made in the writ petition and have stated that all the vacancies for which selection was made by the MPPSC are filled up by the selected candidates. Since the petitioner was in the waiting list at serial No. 16, she could not be appointed in the absence of posts. The petitioner has nowhere claimed in the writ petition that the posts which were subject matter of advertisement and selection are vacant and has not been filled up from the main list. It has also not been ascertained/ alleged in the writ petition that any person lower to the petitioner in merit or below in the waiting list was given appointment. It is also not the case of the petitioner that all the advertised posts could not be filled up or remained vacant hence against that posts waiting list candidates should have been given appointment after the main list is exhausted.

The contention that the adhoc appointees are being regularized against the vacancies is also of no help to the petitioner because it has not been alleged that those vacancies which are being filled up by adhoc appointees were also advertised and was subject matter of selection process in which the petitioner appeared. It is well settled legal position that no appointment can be made over and above the vacancies which were subject matter of advertisement and selection and any appointment made in excess of advertised posts would tantamount to deny or deprive right of the eligible citizens for the post in question guaranteed under Articles 14 and 16 of the Constitution of India. The vacancies which were advertised and were subject matter of selection got exhausted after being filled up from amongst the candidates of main list and waiting list does not subsists to fill up other vacancies which were not advertised. In State of Bihar and another Vs. Madan Mohan Singh and others, the apex Court did not approve filling-up of the vacancy beyond the post advertised. Their Lordships were of the view that after filling-up of the vacancies advertised which was the subject-matter of selection got exhausted and came to an end. Their Lordships further held that if the same list has to be kept subsisting for the purpose of filling-up other vacancies that would also amount to deprivation of rights of other candidates who have become eligible subsequent to the said advertisement and selection process. This view was reiterated by the apex Court in Jitendra Kumar and Others Vs. State of Haryana and Another, ; State of U.P. and Another Vs. Nidhi Khanna and Another, ; Mukul Saikia and Others Vs. State of Assam and Others, The High Court of Judicature for Rajasthan Vs. Veena Verma and Another, and Rakhi Ray and Others Vs. The High Court of Delhi and Others,

In the instant case, since the petitioner having not being included in the main list of the selected candidates and the vacancies having been filled up from the candidates of the main list, she cannot claim appointment on the ground that her name finds place in the waiting list. A waiting list candidate cannot claim appointment against those vacancies which occurred subsequently or were not advertised on the ground that the same may be filled up from amongst the waiting list candidates. Therefore, the grievance made and the prayer sought are misconceived and cannot be granted.

The writ petition lacks merit and hence dismissed but without costs.