Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10510 OF 2022
Priti Subhashrao Sawake, Age: }
27 years, Occu: Education R/O }
At. Damini Nagar, Karanja }
(Lad) Tq. Karanja, Dist. }
Washim & 10 Ors. } … Petitioners
JUDGMENT
1. The State of Maharashtra, } Through its Principal Secretary} Law and Judiciary Department,} Mantralaya, Mumbai-32. }
2. The High Court of Bombay, } Through its Registrar General, } Fort, Mumbai. }
3. The Registrar (Administrat- } ion), High Court of Bombay, } Bench at Nagpur, Nagpur. }... Respondents **** Mr. S. B. Talekar a/w Ms. Madhavi Ayyapam i/b Talekar and Associates Advocate for the Petitioners.
S. D. Vyas “B” Panel Counsel a/w Mr. B. V. Samant, AGP for the State. Dr. Milind Sathe, Senior Counsel a/w Mr. Rahul Nerlekar, Advocates for Respondent Nos. 2 and 3. **** R.V. Patil 1 of 18 RUSHIKESH V PATIL CORAM: DHIRAJ SINGH THAKUR AND VALMIKI SA MENEZES, JJ.
RESERVED ON: 25th NOVEMBER, 2022 PRONOUNCED ON: 09th JANUARY, 2023
JUDGMENT
PER DHIRAJ SINGH THAKUR, J.:. In the present petition, the Petitioners challenge the Rule 53(c) of the Bombay High Court Appellate Side Service Rules, 2000 (“the Rules”) as ultra-virus Article 14 and 16 of the Constitution of India, 1950. A further mandamus is sought for quashing the decision as communicated vide Communications dated 30th October, 2021 and 15th November, 2021 issued by the Registrar (Administration), High Court of Judicature at Bombay, Nagpur Bench, whereby the remaining waiting list for the posts of clerk was cancelled.
2. With a view to understand the controversy in its correct perspective, it is deemed appropriate to briefy state the material facts. An advertisement dated 01st August, 2019 was issued by the High Court of Judicature at Bombay, Nagpur Bench, R.V. Patil 2 of 18 inviting applications from eligible candidates for the post of clerks in the pay scale of S-6: Rs. 19900 - 63200/-. According to the advertisement, a select list of 64 candidates had to be prepared. In addition to this, there would also be a wait list of another 64 candidates. Out of the above 64 advertised posts, three posts were to be reserved for persons with disability in the light of directions issued by the Court in the pending petitions before the High Court. For purposes of clarity, the relevant portion of the advertisement is being reproduced hereunder: “ The High Court of Bombay Bench at Nagpur has been granted permission to prepare Select List of 64 candidates and Wait List of 64 candidates, total 128 candidates, for the post of Clerk, [by keeping 4%, i.e. 3 posts reserved for persons with disabilities in the light of directions issued in Writ Petition (L) No. 1137/2018 with P.I.L. No. 72 of 2018 (P.I.L. No. 46 of 2018 Aurangabad Bench) and these posts will be flled in near future as per the Notifcation of the High Court]. By this advertisement, online applications are invited from eligible candidates, who fulfll eligibility criteria on the date of publication of this advertisement, in the pay scale of S-6: Rs. 19900-63200/- plus allowances as per the Rules. Eligibility Criteria:- ………….” Clause 22 of the said advertisement further prescribed as under: R.V. Patil 3 of 18 “ The Selection and Wait List so approved shall be valid for a period of two years from the date of publication. The lists shall stand lapsed thereafter, unless period is extended by the Hon’ble the Chief Justice.”
3. Based upon the selection process, the Registrar (Administration), Nagpur Bench, published a select list consisting of 64 candidates as also a wait list consisting of another 64 candidates for the post of clerk on 29th November,
2019. It is stated that High Court appointed 64 candidates from the select list and 34 candidates from the waiting list as clerks till the end of July, 2021 and that the remaining wait list was not operated, despite the fact that several posts of clerks were lying vacant in the High Court since July, 2021. It is stated that even when the select list and the wait list published on 29th November, 2019 was valid for two years from the date of its publication i.e. till 28th November, 2021, the same was declared as cancelled as was communicated vide Notifcation dated 15th November, 2021. It is further sated that even when there was no provision under the Bombay High Court Appellate Side Service Rules, 2000 to prepare a separate wait list, the High Court proceeded R.V. Patil 4 of 18 to prepare a separate wait list in addition to the select list. It is stated that the Rules 52 and 53 of the Rules were amended vide Notifcation dated 27th November, 2021, which would only operate prospectively without any retrospective effect and that the recruitment rules as they existed at the time of the publication of the select list on 29th November, 2019, would be the only relevant rules. It was contended that as per Rule 53(a) as it stood then the requirement was to prepare a select list in the order of merit, which would consist of twice the number of expected vacancies in the next two years and that the lists so prepared would be valid ordinarily for a period of two years from the date of its notifcation with the discretion of the Chief Justice to direct the appointment from such a list even after the expiry of two years and until a new list was prepared in accordance with the Rules.
4. The argument that was advanced by Mr. S. B. Talekar, learned Counsel for the Petitioners was that the select list of 64 candidates as also the wait list of 64 candidates totaling 128, in fact represented not only the actual vacancies but also R.V. Patil 5 of 18 the anticipated vacancies, which were likely to fall vacant in the next two years. It was urged that it was only in that background that Rule 53(c) envisaged that the list prepared would remain ordinarily valid for a period of two years from the date of its notifcation. At this stage it becomes relevant to reproduce a comparative Chart of the relevant provisions of Rules 52 and 53 before and After amendment as hereunder: Sr. Rule Original Rule – 2021 Rule Post – 2021 amendment 1 52(a) The Registrar shall issue a Notice inviting applications from eligible candidates for being included in the Select List. The Registrar shall issue a Notice inviting applications from eligible candidates for being included in the Select List. * The Notice shall indicate the number of existing vacancies sought to be flled up. It may also indicate the number of vacancies that are expected to arise in the next two years. In case the expected vacancies are indicated, the Selection Process shall be conducted for flling up both existing and expected vacancies. 2 53(b) The Select List shall consist of twice, the number of expected vacancies in the next two years and candidates shall be included in the Select List in the order of merit. * The Select List shall consist of names of candidates, equal to the number of vacancies notifed as per Rule 52(a), arranged in order of merit. If considered necessary, a Wait R.V. Patil 6 of 18 List of candidates arranged in order of merit may be prepared not exceeding 25% of the total number of vacancies notifed. 3 53(c) The Select List so prepared shall ordinarily be valid for a period of two years from the date of its Notifcation as above. Provided that the Chief Justice may in his discretion direct the appointment from that list even after the expiry of period of two years until a new list is prepared in accordance with the Rules. * The aforesaid list(s) so prepared shall ordinarily be valid for a period of two years from the date of its notifcation as above. Provided that the Chief Justice may, in his discretion direct the appointment from those list(s) even after the expiry of the period of two years until a new list is prepared in accordance with the Rules.
5. In the response fled by the High Court it is admitted that applications were invited for 64 vacancies and another wait list for 64 candidates was prepared and which was notifed on 29th November, 2019. It is stated that out of 64 candidates on the select list, only one candidate did not join service and hence one candidate from the wait list was duly called. Further stand taken, as is refected in the reply affdavit, is that with the flling up of 64 posts, the select list and the wait list got exhausted and that the remaining candidates on the wait list do not have any right to claim appointment. It is however stated that in view of special exigencies, call letters R.V. Patil 7 of 18 were issued to candidates on the wait list till serial No. 37. However it is stated that the candidate at Serial No. 37 of the wait list declined to join the service on account of having secured a job in the Department of Posts and, therefore, his name was deleted from the wait list. It is admitted that pursuant to the directions of the Chief Justice, the proposal for extension of the wait list was rejected. The decision taken as was communicated vide Communication dated 30th October, 2021 by the Registrar (Personnel) High Court of Bombay, Appellate Side, was as under: “No further appointment from the ‘Wait List’ be made. Fresh process be commenced for flling up all vacant posts.” Besides this, it is stated that merely because the name of the Petitioners fgured in the wait list, no right accrues to them for seeking appointment as such.
6. We have heard learned Counsel for the parties. Admittedly as per the advertisement only 64 candidates had to be selected for appointment against the post of clerks while an equal number was to be refected in the wait list. 4% R.V. Patil 8 of 18 posts were to be kept reserved for persons with disabilities in accordance with the directions issued in pending petitions. Admittedly, as against 64 vacancies, 63 candidates had joined and the wait list had to be operated in regard to one candidate. It has been admitted in the reply affdavit fled by the High Court that the wait list was operated to fll up not 64 but 92 posts. It was stated that out of 64 candidates whose names fgured in the select list, 63 candidates joined and besides flling up one post from the candidate fguring in the wait list additional 28 candidates were appointed. From a reading of the advertisement notice dated 01st August, 2019, it is quite clear that the advertised vacancies were only 64 while the rest of the 64 candidates were to fgure in the wait list. A wait list operates only when the candidates whose names fgure in the select list do not join.
7. We are not at all convinced with the argument as was propounded by learned Counsel for the Petitioners that the advertised vacancies were 128 representing not only the actual but anticipated vacancies as well. This proposition runs R.V. Patil 9 of 18 in the face of the advertisement notice dated 01st August, 2019, which clearly envisaged preparation of the select list for 64 candidates only and nothing more. However, with a view to ascertain the position as regards the available clear vacancies and the anticipated vacancies, records were called, based upon which the registry has prepared a chart which is being reproduced herein below: Calculation as provided by Nagpur Bench vide submission dated 16th January, 2019 Permission granted by Personnel Department vide letter dated 11th June, 2019 Sr. Particulars Total Posts Sr. Particulars Total Posts
1. Clear vacant posts on the date of the Advt. i.e. 01.08.2019 45 1. No. of vacancies 75
2. Anticipated promotions to the post of Assistant Registrars 4 2. Reserved to fll up 10% posts from class IV employees and Staff-Car- Drivers, by promotion (-) 8
3. Anticipated post of Section Offcers
3. Reserved 4% posts for persons with disabilities in the light of directions issued in WP(L) No.1137/2018 with PIL No.72 of 2018. (-) 3
4. Anticipated post of Assistants 8 4. Posts for which the permission is granted to commence Selection Process, 2019. (=) 64 R.V. Patil 10 of 18
5. Assistants who will be retiring TOTAL 75 Based upon the aforementioned facts, it would therefore not be correct to suggest that the posts which were advertised were 128, included actual and anticipated vacancies, which goes not only contrary to the advertisement notice but even the record. A lot of emphasis was placed on Rule 53(b) by learned Counsel for the Petitioners to bring home the point that the list of 128 candidates was in fact the select list as it contained twice the number of advertised vacancies.
8. The names of the Petitioner admittedly fgured in the waiting list. Law with regard to rights of the candidates fguring in the waiting list as also the issue whether the appointments in excess of the advertised posts can be made is no longer res integra.
9. In the case of Gujarat State Dy. Executive Engineers’ Association V/s. State of Gujrat & Ors.[1] it was held that a wait 1 1994 Supp (2) SCC 591. R.V. Patil 11 of 18 list could not be used as a perennial source of recruitment for flling up vacancies not advertised and that it became operative only if any of the selected candidates did not join, which would result in the person from the wait list being pushed up and be appointed from the vacancies so caused. It was held:
10. In the case of Prem Singh & Ors. V/s. Haryana State Electricity Board & Ors.[2] the Apex Court held as under:
11. In the case of Madan Lal & Ors. V/s. State of J & K and Ors.[3] held that once the advertised posts are flled by candidate from the select list, the list exhausts itself having served its purpose. It was held:
12. Considering the ratio of the judgments refected hereinabove, it thus becomes clear that merely because the name of a candidate fgures in the wait list by itself creates no indefeasible right to seek appointment and that the candidate’s right is limited to consideration for appointment in a case where any of the selected candidates does not join and further that no appointment can be made in excess of the posts advertised, inasmuch as if the wait list were to be used as perennial source of recruitment, it would deprive others from consideration for such an appointment and create a vested interest in favour of those, whose name fgured in the wait list. From the material on record, we have no hesitation in holding frstly that the posts that were advertised by virtue of advertisement notice dated 01st August, 2019 were limited to the extent of 64 candidates, which included the actual vacancies as also anticipated vacancies while the list of 64 candidates in the wait list would get a right of appointment R.V. Patil 16 of 18 only in the eventuality of any of the candidates had failed to join against the the post for which such a candidate was selected.
13. Insofar as Rule 53(b) is concerned, it did envisage the select list to consist of twice the number of expected vacancies in the next two years and the names of the candidates included in the select list to be refected in the order of merit, yet the rule must be deemed to presuppose an equal number of vacancies to be advertised. In the absence whereof, a situation would arise where the number of advertised posts would be far less than the number of candidates whose name fgure in the select list and assuming such a situation did arise in any case, No appointments in excess of the advertised vacancies could be made.
14. We have also noticed that in the present case although the wait list had been operated to make appointments beyond the 64 posts which were advertised but since the said appointments are not under challenge before us, we only hold that the wait list cannot be directed to be operated in the case R.V. Patil 17 of 18 of the petitioners beyond the advertised 64 posts on the analogy that similarly situated other candidates were so appointed beyond the 64 posts so advertised.
15. We also hold that once the advertised vacancies were flled up, the select list as also the wait list would exhaust itself as was held by the Apex Court in the case of Madan Lal & Ors. V/s. State of J & K and Ors. and, therefore, no right would survive in favour of the Petitioners. Having held so all other issues raised regarding challenge to the discretion vested in the Chief Justice in terms of Rule 53(c) is rendered academic and may be decided in an appropriate case.
16. For the reasons mentioned above, the petition is found to be without merit and is, accordingly, dismissed. (VALMIKI SA MENEZES, J.) (DHIRAJ SINGH THAKUR, J.) R.V. Patil 18 of 18