Vijay Raj Yadav and Others vs State of U.P. and Others

Sudhir Agarwal, J.—Sri S.S.P. Gupta, learned Counsel for the Petitioners has sought adjournment on the ground of illness. The order sheet shows that throughout learned Counsel for the Petitioners has avoided in appearing before this Court inasmuch as on 04.01.2011 when this matter came up as fresh none appeared and the case was directed to be listed in ordinary course. Thereafter on 07.02.2011, 15.02.2011, 03.03.2011 and 17.03.2011 repeatedly this case has been adjourned on account of illness. Hence I decline to pass over the case today on the ground of illness.

List revised. None appeared on behalf of Petitioners to press this petition. However, I have perused the record.

Petitioners have sought a writ of mandamus commanding the Respondent No. 2 to appoint them on the post of Safari Karmic against 132 vacant posts forthwith.

The Petitioners claimed to be in waiting list, result whereof was declared on 17.01.2009, pursuant to advertisement dated 15.06.2008 for appointment on the post of Safari Karmic in District Azamgarh. It is claimed that there are certain vacancies reserved for various category candidates which are unfilled where against Petitioners ought to be appointed.

Once it is admitted that Petitioners are in waiting list and the category in which they have applied, the vacancies are already filled in, as is evident from para 13 of the writ petition, a wait list candidate has no right to seek a mandamus for appointment.

The Apex Court in Shankarsan Dash Vs. Union of India, said:

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 bonafide 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 The State of Haryana Vs. Subash Chander Marwaha and Others, ; Miss Neelima Shangla, Ph. D. Candidate Vs. State of Haryana and Others, and Jitendra Kumar and Ors. v. State of Punjab and Ors. (1985) 1 SCR 899

In the case of U.P. Public Service Commission, Allahabad and Anr. v. State of U.P. and Anr. 2007 (5) ADJ 280 (DB) in which rights of wait list candidate was considered by this Court, in para15 of the judgment, it held:

A wait list candidate does not have any indefeasible right to get appointment merely for the reason that his name finds place in the wait list." This Court in taking the aforesaid view relied upon the decision in Ved Prakash Tripathi v. State of U.P. 2001(1) ESC 317 and Surinder Singh and Others Vs. State of Punjab and Another, and held that even a select list candidate has no indefeasible right to claim appointment. In para31 of the judgment in U.P. Public Service Commission, Allahabad and Anr. (supra) this Court has further held as under:

Moreover, even in the case of a select list candidate, the law is well settled that such a candidate has no indefeasible right to claim appointment merely for the reason that his name is included in the select list as the State is under no legal duty to fill up all or any of the vacancy and it can always be left vacant or unfilled for a valid reason.

In view of the aforesaid law laid down in Shankarsan Dash v. Union of India (Supra) and U.P. Public Service Commission, Allahabad and Anr. (supra), I am of the opinion that Petitioners have no legal or statutory right to enforce.

The writ petition lacks merit and it is accordingly dismissed.