Dr Shashi Bhushan v. University of Delhi & Anr.

(iii) Post has fallen vacant due to the incumbent appointed at any other higher position/principal etc.

7. Therefore, if the post has fallen vacant due to any of the above cited reason(s), it results into a fresh vacancy, which can only be filled through fresh advertisement to be issued by the Colleges/Institutions for filling up the post after following due processes & procedure envisaged under Ordinances of the University for selection to fill the post(s).

8. The Principal(s)/Director(s) of the Colleges/Institutions are required to comply with the above directives in spirit and shall not violate the provisions of Ordinances of the University.

9. This issues with the approval of the Competent Authority. Yours faithfully. Deputy Registrar (Colleges)” The Impugned Judgment

8. By the impugned judgment, the learned Single Judge has dismissed WP (C) 4949/2024. Having reproduced paras 4 to 6 of the Circular dated 3 April 2024 issued by the University, the learned Single Judge has held as under: “8. It is apparent that the University after having examined the ratio laid down by the Supreme Court in Sudesh Kumar Goyal (supra) issued the communication/clarification as to under what circumstances a waitlisted candidate can be offered appointment and sufficiently clarified that resignation of previous incumbent would not give any right of appointment to such waitlist candidate.

9. It is not disputed by Mr. Chimni that in the present case, the said Ms. Usha Rani who was originally figuring at

┌────────────────────────────────────────────────────────────────────────────────────────────────────────────────┐
│                             Serial Nos. 12 to 20 in the list can be considered only in case                    │
│                             within one year of its publication, all the 11 vacancies do not get                │
│                             filled up for any reason. In such a case only this additional list of              │
│                             selected candidates would serve as a reservoir from which                          │
│                             meritorious suitable candidates can be drawn in order of merit to                  │
│                             fill up the remaining requisitioned and advertised vacancies, out of               │
│                             the total 11 vacancies. If that cannot be done for any reason within               │
│                             one year of the publication of the list, even this reservoir will dry              │
│                             up and the entire list will get exhausted. We asked learned counsel                │
│                             for respondent-State to point out whether after the letter at page 87,             │
│                     LPA 491/2024                                                               Page 20 of 27   │
└────────────────────────────────────────────────────────────────────────────────────────────────────────────────┘

19.[1] That apart, we are unable to accept Mr. Chimni’s contention that the decision in Sudesh Kumar Goyal is distinguishable. The mere fact that, in the said case, there may not have been any formal waiting list, cannot make out a difference. Sudesh Kumar Goyal, the appellant before the Supreme Court, was an aspirant to the Haryana Superior Judicial Service, by direct recruitment from the Bar. He qualified the written examination. There were, however, 13 vacancies, and Sudesh was 14th in merit. Effectively, therefore, as in the case of the present appellant, Sudesh was the first candidate on merit after the last candidate who was selected against the notified vacancies. 19.[2] Of the 13 candidates selected and appointed against the notified vacancies, one of the candidates, Jitender Kumar Sinha23, who had joined later resigned – as did Usha Rani in the present case. Like the present appellant, Sudesh petitioned the High Court under Article 226 of the Constitution of India, pointing out that he was the next candidate on merit, and had a right to be appointed against the vacancies which had been arisen consequent on the resignation of Sinha. 19.[3] The Supreme Court first addressed the contention of Sudesh that the respondent before the Supreme Court had acted arbitrarily in not appointing Sudesh. On this, the Supreme Court held, in para 18 of the report, that there was no arbitrariness in the way in which the respondent before it had acted. It was also noted by the Supreme Court, in this context, that mere qualification in the selection process did not confer, on Sudesh, any defeasible right to appointment. 19.[4] The Supreme Court, thereafter, addressed the submission of Sudesh that he could have been adjusted against the vacancy which had arisen on Sinha’s resignation. In that regard, the Supreme Court held thus, in para 19 of the report:

“Sinha” hereinafter up initially. However, if one of the selected candidates joins and then resigns, it gives rise to a fresh vacancy which could not have been filled up without issuing a proper advertisement and following the fresh selection process. The Division Bench has rightly dealt with the above contention in the light of the precedent of the various decisions of this Court and we do not feel that any error has been committed in this context.” (Emphasis supplied) 19.[5] The attempt of Mr. Chimni to distinguish Sudesh Kumar Goyal solely on the ground that the nature of the vacancies with which the Supreme Court was concerned was different from the nature of the vacancies in the present case, cannot be accepted. The reasoning of the Supreme Court, in para 19 of the report in Sudesh Kumar Goyal, is clearly independent and dehors the nature of the vacancies with which the Supreme Court was concerned. 19.[6] Simply put, the Supreme Court held that the resignation of a candidate after joining give rise to a fresh vacancy. In our considered opinion, in fact, this is but obvious. So long as the candidates had not joined the posts to which they were appointed, following the selection, it might have been possible to contend that the panel – or the waiting list – survived. 19.[7] Once the candidates had joined and the selection process had culminated in appointments, there could be no question of the panel, which was intended to be used for selection and appointment, surviving any further. Any vacancy which arose thereafter, even if it was by way of resignation of one of the appointed candidates was, therefore, a fresh vacancy. It had to be readvertised. Candidates in the select panel or the wait list, relatable to the earlier selection, which had culminated in appointments having been made to all vacancies, could not maintain a right to appointment against the vacancies once they were filled. A vacancy which arose after a candidate had joined, owing to the candidate demitting the appointment for any reason, had necessarily to be thrown open to all aspirants to the posts, by way of a fresh advertisement.

20. Madan Lal 20.[1] This legal position has been emphasised with even greater clarity in the judgment of the Supreme Court in Madan Lal, on which Mr. Rupal sought to rely. Before referring to the passages from Madan Lal which exposit the law in this regard, one may reproduce, in the context of Mr Chimni’s attempt to distinguish Sudesh Kumar Goyal, para 23 of the report:

from the Office of the Commission that the requisition for the proposed recruitment is for filling up 11 vacancies. In such a case a given candidate may not like to compete for diverse reasons but if requisition is for larger number of vacancies for which recruitment is initiated, he may like to compete. Consequently, the actual appointments to the posts have to be confined to the posts for recruitment to which requisition is sent by the Government. In such an eventuality, candidates in excess of 11 who are lower in the merit list of candidates can only be treated as wait-listed candidates in order of merit to fill only the 11 vacancies for which recruitment has been made, in the event of any higher candidate not being available to fill the 11 vacancies, for any reason. Once the 11 vacancies are filled by candidates taken in order of merit from the select list that list will get exhausted, having served its purpose.” Thus, Mr. Chimni’s contention that Sudesh Kumar Goyal is distinguishable as it did not involve any wait list, is misconceived. Once candidates have been selected against the available vacancies, the remaining candidates, lower in merit, can, as per Madan Lal, “only be treated as wait-listed candidates”. 20.[2] Paras 24 to 27 of Madan Lal may be reproduced thus:

remain in operation till the list or the waiting list is exhausted.” A mere look at the rule shows that pursuant to the requisition to be forwarded by the Government to the Commission for initiating the recruitment process, if the Commission has prepared the merit list and the waiting list of selected candidates such list will have a life of one year from the date of publication in Government Gazette or till it is exhausted by the appointment of candidates, whichever is earlier. This means that if requisition is for filling up of 11 vacancies and it does not include any anticipated vacancies, the recruitment to be initiated by the Commission could be for selecting 11 suitable candidates. The Commission may by abundant caution prepare a merit list of 20 or even 30 candidates as per their inter se ranking on merit. But such a merit list will have a maximum life of one year from the date of publication or till all the required appointments are made whichever event happened earlier. It means that if requisition for recruitment is for 11 vacancies and the merit list prepared is for 20 candidates, the moment 11 vacancies are filled in from the merit list the list gets exhausted, or if during the span of one year from the date of publication of such list all the 11 vacancies are not filled in, the moment the year is over the list gets exhausted. In either event, thereafter, if further vacancies are to be filled in or remaining vacancies are to be filled in, after one year, a fresh process of recruitment is to be initiated giving a fresh opportunity to all the open market candidates to compete. This is the thrust of Rule 41. It is in consonance with the settled legal position as we will presently see. We cannot agree with the learned counsel for respondents that during the period of one year even if all the 11 vacancies are filled in for which requisition is initiated by the State in the present case and if some more vacancies arise during one year, the present list can still be operated upon because the Commission has sent the list of 20 selected candidates. As discussed above, the candidates standing at Serial Nos. 12 to 20 in the list can be considered only in case within one year of its publication, all the 11 vacancies do not get filled up for any reason. In such a case only this additional list of selected candidates would serve as a reservoir from which meritorious suitable candidates can be drawn in order of merit to fill up the remaining requisitioned and advertised vacancies, out of the total 11 vacancies. If that cannot be done for any reason within one year of the publication of the list, even this reservoir will dry up and the entire list will get exhausted. We asked learned counsel for respondent-State to point out whether after the letter at page 87, there was any further communication by the State to the Commission to initiate the process for recruitment to additional anticipated vacancies. He fairly stated that no further request was sent. That letter at page 87 is the only material for this purpose since that is the basis for the recruitment made by the Commission in the present case. In this connection, we may usefully refer to a decision of this Court in the case of State of Bihar v Madan Mohan Singh24. In that case appointments to the posts of Additional District and Sessions Judges were being questioned. The question was whether appointments could be made to more than 32 posts when the selection process was initiated for filling up 32 vacancies and whether the merit list of larger number of candidates would remain in operation after 32 vacancies were filled in. Negativing the contention that such merit list for larger number of candidates could remain in operation after 32 advertised vacancies were filled in, K. Jayachandra Reddy, J. made the following pertinent observations: “Where the particular advertisement and the consequent selection process were meant only to fill up 32 vacancies and not to fill up the other vacancies, the merit list of 129 candidates prepared in the ratio of 1: 4 on the basis of the written test as well as viva voce will hold good only for the purpose of filling up those 32 vacancies and no further because said process of selection for those 32 vacancies got exhausted and came to an end. If the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and selection process.”

25. Reliance placed by the learned counsel for respondents in the case of Asha Kaul (Mrs) v State of J & K25 is of no avail. In that case the very same Jammu and Kashmir Government had sent a requisition to the Public Service Commission to select 20 candidates for the posts of Munsif in accordance with the High Court requirement. Therefore, the Commission advertised for recruitment to the said posts and held written test and oral interview. The Commission having selected 20 candidates in the order of merit and also having prepared a waiting list of candidates, the State of Jammu and Kashmir did not appoint even selected 20 candidates on these advertised posts. The High Court rejected the writ petition praying for a suitable writ of mandamus to the State to fill up the remaining vacancies out of 20 for which recruitment was made. The petitioners approached this Court in appeal by way of special leave. This Court speaking through Jeevan Reddy, J. took the view that though inclusion in the select list does not confer any indefeasible right to appointment, there was an obligation on the Government to fill up all the posts for which requisition and advertisement were given. However on the peculiar facts of the case, the court did not think it fit to interfere. This Court in para 10 of the report clearly observed that by merely approving the list of 20 there was no obligation on the Government to appoint them forthwith. The appointment depends upon the availability of the vacancies. The list remains valid for one year from the date of its approval and date of publication and if within such one year any of the candidates therein is not appointed, the list lapses and a fresh list has to be prepared. Though a number of complaints had been received by the Government about the selection process, if the Government wanted to disapprove or reject the list, it ought to have done so within a reasonable time of the receipt of the select list and for reasons to be recorded. Not having done that and having approved the list partly (13 out of 20 names), they cannot put forward any ground for not approving the remaining list. It is difficult to appreciate how this judgment can be of any avail to the respondents. In the case aforesaid before this Court, there was a clear requisition and recruitment for 20 posts. The State had however chosen to appoint only 13 out of 20. The list had a life of one year till all the 20 posts were filled up. This was in consonance with Rule 41. In the present case the facts are different. The requisition is not for 20 vacancies as in Asha Kaul but for 11 posts. There is no requisition to fill up any more anticipated vacancies. Once the list is approved even though it may contain names of 20 candidates, the list in the present case will get exhausted once 11 vacancies, for which advertisement had been issued and recruitment is made, are filled up.

26. At this stage we may profitably refer to one more decision of this Court in Hoshiar Singh v State of Haryana26. In that case the requisition for recruitment as sent by the Director General of Police to the Haryana Subordinate Services Selection Board was for appointment of 8 posts of Inspector of Police. The Board 1993 Supp (4) SCC 377 however sent a list of 19 selected candidates, out of them 18 persons were given appointments. The appointments on posts beyond the 8 posts for which requisition was made by the Director General of Police were brought in challenge before the High Court. The High Court accepted the challenge and held that appointments beyond 8 posts were illegal. This Court while upholding the decision of High Court speaking through Agrawal, J. observed in para 10 of the report as under: “The learned counsel for these appellants have not been able to show that after the revised requisition dated 24-1- 1991 whereby the Board was requested to send its recommendation for 8 posts, any further requisition was sent by the Director General of Police for a larger number of posts. Since the requisition was for eight posts of Inspector of Police, the Board was required to send its recommendations for eight posts only. The Board, on its own, could not recommend names of 19 persons for appointment even though the requisition was for eight posts only because the selection and recommendation of larger number of persons than the posts for which requisition is sent. The appointment on the additional posts on the basis of such selection and recommendation would deprive candidates who were not eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts because if the said additional posts are advertised subsequently those who become eligible for appointment would be entitled to apply for the same. The High Court was, therefore, right in holding that the selection of 19 persons by the Board even though the requisition was for 8 posts only, was not legally sustainable.”

27. In the present case as the requisition is for 11 posts and even though the Commission might have sent list of 20 selected candidates, appointments to be effected out of the said list would be on 11 posts and not beyond 11 posts, as discussed by us earlier. This contention will stand accepted to the extent indicated hereinabove.” 20.[3] Thus, even though, in Madan Lal, there was a provision which specified that the waiting list would remain in operation only till it was exhausted by appointment of selected candidates, the Supreme Court, even while referring to the said clause, went on to observe that the clause was in consonance with the settled legal position as enunciated in, inter alia, Madan Mohan Singh. Madan Lal and Madan Mohan Singh, therefore, clearly enunciate the general principle that a panel, or a waiting list, remains in operation till the selected candidates are appointed and cannot survive thereafter.

21. Raghbir Chand Sharma 21.[1] If there was any doubt about this proposition, it stands laid to rest by para 4 of the report in Raghbir Chand Sharma, which reads as under:

22. The position may have been different if there was any provision in the Ordinances or statutes governing the University, providing that even after the selected candidate had been appointed to the post for which the selection had been conducted, if an appointed candidate subsequently resigned, the waiting list could be operated. There is unfortunately for the petitioner, no such provision. The DOPT OM dated 13 June 2000 clearly does not apply.

23. Shankarsan Dash enunciated more than 30 years ago the principle that a selected candidate has no right to appointment. Selection only confers on a candidate a consideration for appointment. Ofcourse, the Appointing Authority cannot keep vacancies unfilled without due justification. That principle, however, would apply only where no appointment was made against the number of vacancies advertised or notified. Once appointments had been made, the responsibility of the Appointing Authority to continue to operate the select panel or the waiting list ceases, in the absence of any binding rule, ordinance or instruction to the contrary. If a vacancy arises thereafter, on account of, for example, one of the appointed candidates resigning, that vacancy would have to be re-advertised.

24. In view of the aforesaid, it is clear that the appellant had no indefeasible right to appointment merely because he was the first candidate in the waitlist. At the cost of repetition, had either Usha Rani or Jitendra Rishideo not joined, perhaps the situation may have been different. Once they were formally appointed and joined duty, however, no right would survive in the appellant to the post against which they have been appointed. If, therefore, either of them left the job after joining, it gave rise to a fresh vacancy which, applying the law as its stands, was required to be re-advertised.

25. We, therefore, find no error in the judgment of the learned Single Judge. No occasion arises for us to interfere therewith.

26. The appeal is, accordingly, dismissed with no orders as to costs.

C. HARI SHANKAR, J.