Suman v. Bharati College

Ms. Mishra submits that the vacancy in question does not fall within the category of vacancies mentioned above, and therefore the post does not warrant a fresh advertisement. The vacancy ought to have been filled from the waitlist. Emphasis supplied.

9. In support of the petitioner’s contention, Ms. Mishra relies upon a judgment of this Court in Raghunath Prasad Saket v. Satyawati College & Ors[2], which challenged the appointment of a candidate to the post of Lecturer in Economics (SC Category), as he did not possess the mandatory National Eligibility Test qualification at the time of interview. The petition was allowed, and the candidate’s appointment was set aside as being void ab inito. The Court noted that the petitioner therein was placed second in the panel, and remanded the selection to the Selection Committee to finalise the appointment within a fixed time period.

10. On the other hand, Ms. Monika Arora, learned counsel for the College, and Mr. Mohinder J.S. Rupal, learned counsel for DU, submit that a candidate in the waitlist has no vested right in situations where selected candidates were appointed, but vacate their post subsequently. They contend that in such circumstances, the panel stands exhausted, and a fresh selection process has to be undertaken.

11. Ms. Arora contends that while rejecting the petitioner’s representation, the Governing Body took note of the aforesaid communication by DU, and laid emphasis on the fact that it categorically mentions that the “candidates on the waitlist can be given the offer of appointment if any of the selected candidates do not join within the given timeframe”. She further contends that in the present case, respondent NO. 8 was selected and had joined the services of the College. She was terminated after almost 11 months of being selected. There is, therefore, no question that respondent No. 8 had not joined the services within the given timeframe. 2009 SCC OnLine Del 3121, [hereinafter, “Raghunath Prasad Saket”].

12. Having heard learned counsel for the parties, I am of the view that the legal position is indisputably against the petitioner. The Supreme Court has considered the question in several decisions including Sudesh Kumar Goyal v State of Haryana & Ors[3], Madan Lal v State of Jammu and Kashmir[4], and State of Punjab v Raghbir Chand Sharma[5]. These judgments have all been considered in a recent judgment by the Division Bench of this Court in Dr. Shashi Bhushan v. University of Delhi[6].

13. The principles have been developed flowing from the judgment in Shankarsan Dash v UOI[7], wherein the Supreme Court held that a selected candidate has no indefeasible right to appointment.

14. A detailed discussion on the earlier authorities is unnecessary, because they have been elaborately considered in Dr. Shashi Bhushan. The Division Bench was concerned, as in the present case, with recruitment for the post of Assistant Professor in a constituent college of DU. There also, the petitioner was first in the waitlist. He claimed a right to appointment upon resignation of one of the selected candidates. The Court, inter-alia, noticed the communication of DU dated 03.04.2024, which has been cited by Ms. Mishra in her arguments. However, upon a detailed consideration inter-alia of the aforesaid judgments of the Supreme Court, the Division Bench found against the writ petitioner.

15. In Sudesh Kumar Goyal, the Court found that being placed at the top of the waiting list did not confer any right to appointment upon the candidate. It held that the waitlist could not be operated after resignation (2023) 10 SCC 54, [hereinafter, “Sudesh Kumar Goyal”]. (1995) 3 SCC 486, [hereinafter, “Madan Lal”]. (2002) 1 SCC 113, [hereinafter, “Raghbir Chand Sharma”]. 2025 SCC OnLine Del 1319, [hereinafter, “Dr. Shashi Bhushan”]. of the selected candidate who had joined service. In Dr. Shashi Bhushan, the Division Bench has made the following observations as to the ratio of Sudesh Kumar Goyal: “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.”

16. In Madan Lal, the Court held that candidates, who are lower in merit than the number of vacancies advertised, can only be treated as waitlisted candidates, and can be appointed only if a selected candidate does not accept the offer of appointment. As far as Madan Lal and an earlier judgment in State of Bihar v. Madan Mohan Singh[9] are concerned, the Division Bench in Dr. Shashi Bhushan held as follows: “20.3. Thus, even though, in Madan Lal case, 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 case. Madan Lal case and Madan Mohan Singh case, 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.”10

17. In Raghbir Chand Sharma, the principle has been explained thus:

18. The conclusions of the Division Bench in Dr. Shashi Bhushan are recorded in the following terms:

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.”

19. The petitioner, in the present case, is in a position which is substantially similar; two posts of Assistant Professor - Political Science (SC category) were advertised, and two candidates were selected. Both accepted the offer and joined service. The services of respondent No.8 were, however, terminated approximately one year later.

20. The only distinction that can be drawn between the cases considered above and the present case, is that the services of respondent No. 8 were terminated by the College on the ground that she was ineligible for appointment. The consequence is that the petitioner would have been appointed if the ineligibility of respondent No. 8 had been discovered before she was appointed. This situation certainly raises an unfortunate predicament, but does not furnish a ground to distinguish the line of authority cited above. The judgments clearly hold that the waitlist or panel itself is exhausted, at the very latest, upon the appointed candidate joining service. The subsequent termination, like the case of resignation in Dr Shashi Bhushan, gives rise to a vacancy, but the vacancy arises only after the selection process in question was already concluded. These factors sustain, even if the vacancy arises due to the selected candidate’s ineligibility, discovered subsequently. The appointment of respondent No. 8 unravelled in the present case within one year, but in another case, the true position may be discovered much in future. In such a circumstance, it would cause an anomalous and impractical situation, to require an employer to go back to the waitlist to fill the resulting vacancy.

21. The judgment in Raghunath Prasad Saket also does not help the petitioner’s case, as it involved a challenge to the selection of an ineligible candidate, which is substantially different from the facts of the present matter.

22. For the reasons aforesaid, I am unable to come to the aid of the petitioner in the present case. The writ petition is, therefore, dismissed, alongwith the pending application.

PRATEEK JALAN, J MAY 30, 2025 “SS/AD”