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2010 DIGILAW 398 (MP)

JINENDRA KUMAR JAIN v. STATE OF MP.

2010-04-06

RAJENDRA MENON

body2010
Judgment Rajendra Menon, J. ( 1. ) :-As common questions are involved in all the three petitions and as challenge is made to a common order passed on 17.2.2009, by the Public Service Commission, Indore, all these petitions are being decided by this common order. For the sake of convenience, documents and other material available in Writ Petition No.3796/2009(S) is being referred to. ( 2. ) M.P. Public Service Commission Examination 2000-01 was notified vide advertisement issued on 9.12.1999. The Examination was to be conducted for filling up various posts in the State services. Initially, the examination was scheduled to commence on 30.4.2000. However, it seems that the original schedule was not adhered to and the Examination for the year 2000-01 was held in combination with the Public Service Commission Examination for the year 2003, which was notified by another advertisement on 9.10.2003. The main examination which was initially to be held in the year 2004, commenced and was held in May 2006, interviews were held between February to April 2009 and the main list of candidates, as per merit, was notified by the PSC on 11.6.2007. This list was valid for a period of one year i.e.. from 11.6.2007 to 10.6.2008 and alongwith the main list a Supplementary List also known as the Waiting List was published on 11.6.2007. This Supplementary List had a validity period of 18 months i.e... from 11.6.2007 to 12.12.2008. ( 3. ) The publication of the list as indicated hereinabove and its validity are not in dispute. Candidates from the main list were allocated to the Excise Department and it is alleged by the petitioner that 11 posts fell vacant due to either non-joining of the selected candidates or resignation by some of the selected candidates, after joining. As these vacancies arose during the validity period of the Supplementary List i.e.. prior to 12.12.2008, respondent No.3, the Excise Commissioner, wrote letters to the Director General of Jails, Jail Headquarters, Bhopal and the Registrar Co-operative Societies, Bhopal to forward the bio-data of the petitioners, whose names are included in the Supplementary List, for appointment. Documents in this regard are filed as Annexures P/4 to P/7. prior to 12.12.2008, respondent No.3, the Excise Commissioner, wrote letters to the Director General of Jails, Jail Headquarters, Bhopal and the Registrar Co-operative Societies, Bhopal to forward the bio-data of the petitioners, whose names are included in the Supplementary List, for appointment. Documents in this regard are filed as Annexures P/4 to P/7. In consequence thereof, the Jail Headquarters vide Annexure P/8 dated 22.9.2008 sought for willingness of petitioner No.1 Jinendra Kumar Jain, in W.P.No.3796/ 2009(S), and the said petitioner gave his willingness vide Annexure P/9-A. Similarly, willingness of petitioner No.4 Manmohan Sharma, in W.P.No.3797/ 2009(S), was also sought for vide Annexure P/10 and it is the case of each of the petitioners that in their cases also willingness were sought for. However, after such correspondence, it is stated that matter went before respondent No.2 for his concurrence to the proposal for appointment of candidates from the Supplementary List. Respondent No.2 gave his dissenting letter vide Annexure P/l dated 17.2.2009 and, therefore, petitioners are before this Court seeking quashment of Annexure P/l dated 17.2.2009 and a direction to fill up the vacant posts available during the validity period of the Supplementary List, from the candidates as per seniority and merit in the Supplementary List. ( 4. ) Smt. Shobha Menon, learned Senior Advocate for the petitioners, taking me through the correspondence available in this regard, particularly the communications from the office of respondent Nos. 3, 4 and 5 with regard to availability of vacancy and the entitlement of the candidates listed in the Supplementary List for appointment, argued that when vacancies arose due to either non-joining or relinquishment of service by the joined candidate during the currency of the select list, then in the light of the law laid down by a Bench of this Court in the case of Kanchan Saxena Vs. State of MP and another, 2006(2) MPLJ 312 , the dissent recorded by respondent No.2 in Annexure P/l dated 17.2.2009, is unsustainable. State of MP and another, 2006(2) MPLJ 312 , the dissent recorded by respondent No.2 in Annexure P/l dated 17.2.2009, is unsustainable. By filing a rejoinder so also by bringing on record certain communications with regard to appointment of one Shri Kishore Kumar Aharwal, whose name was also in the Supplementary List, in the light of the law laid down in the case of Kanchan Saxena (supra), as contained in I.A.No. 11763/ 2009, learned Senior Advocate argued that in the case of Shri Kishore Kumar Aharwal, PSC vide document No. 1 to I.A.No. 11763/2009 has taken a stand which is contrary to the one made in Annexure P/l, this is highly discriminatory and unsustainable. Accordingly, on the aforesaid grounds learned Senior Advocate prays for grant of relief as claimed in the writ petition. It is stated that when Shri Kishore Kumar Aharwal, whose name was also included in the Supplementary List, is granted benefit, similar benefit should be extended to the present petitioners also. ( 5. ) Respondent No.2 PSC represented by Shri K.S. Wadhwa, admit the fact with regard to the validity period of the list in question i.e... the Supplementary List, but their only objection is that once the selected candidate has joined the post, then the subsequent vacancy created either by resignation or due to new vacancy being created cannot be filled up from the candidates whose names are included in the waiting list. Pointing out that the aforesaid principle is laid down by the Supreme Court in the case of Gujarat State Dy. Executive Engineers Association Vs. The State of Gujarat and Others, JT 1994 (3) SC 559 so also by two Division Bench of this Court, in the case of V.K. Seth Vs. State of MP and another, 1980 MPLJ 287, and in an unreported judgment in Misc. Petition No. 1368/1982 (Dr. B.P. Pawar and four others Vs. State of MP and two others) decided on 22.6.1983, Shri K.S. Wadhwa submits that the principle laid down in the case of Kanchan Saxena (supra) has been decided without taking note of the Division Bench judgments in the case of V.K Seth (supra) and Dr. B.P. Pawar (supra), therefore, now no relief can be granted to the petitioners. ( 6. ) Having heard learned counsel for the parties and on a perusal of the records it is clear that the factual assertions made are not in dispute. B.P. Pawar (supra), therefore, now no relief can be granted to the petitioners. ( 6. ) Having heard learned counsel for the parties and on a perusal of the records it is clear that the factual assertions made are not in dispute. It is an admitted position that names of each of the petitioners appear in the Supplementary List and the validity period of the same is of 18 months, and the said period of 18 months is from 11.6.2007 to 10.12.2008. It is also not in dispute that some of the candidates, who had joined in pursuance to the offer made to them on the basis of their position in the main list have resigned and have left the job and, therefore, the vacancies have risen during the validity period of the Supplementary List. The question is as to whether these vacancies can be filled up by candidates from the Supplementary List or these are vacant posts, which have to be filled up by initiating fresh recruitment process. ( 7. ) The answer to the said question is available in the judgment of Gujarat State Dy. Executive Engineers Association (supra) relied upon by Shri K.S. Wadhwa. The said judgment is also relied upon by the learned Judge of this Court in the case of Kanchan Saxena (supra). In paragraph 8 of the said judgment i.e... in the case of Gujarat State Dy. Executive Engineers Association (supra), Supreme Court has dealt with the matter in the following manner: "8. Coming to the next issue, the first question is what is a waiting list?; can it be treated as a source of recruitment from which candidates may be drawn as and when necessary?; and lastly how long can it operate? These are some important questions which do arise as a result of direction issued by the High court. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. How it should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. How it should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent authority prepares a waiting list then it is in respect of those 10 seats only for which selection or competition was held. Reason for it is that whenever selection is held, except where it is for single post, it is normally held by taking into account not only the number of vacancies existing on the date when advertisement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selections are held regularly by the Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. He has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons." (Emphasis supplied) The underlined portion would indicate that a candidate whose name appears in the waiting list in the order of merit has a right to claim that he should be appointed if one or other of the selected candidate does not join. It is further seen that if a selected candidate joins and thereafter no vacancies arise due to resignation or for any other reason within the period the list is in operation, a candidate from the waiting list has no right to claim appointment on any future vacancy. The aforesaid judgment is very clear, it contemplates a condition that if a candidate as per merit does not join then the said post would go to a candidate in the waiting list, if the validity period of the waiting list is not over. Similarly, if a candidate after joining resigns and a vacancy arises during the period the list is in operation then the candidate from the waiting list has a right to claim appointment on the post. This judgment does not help the respondents as canvassed by Shri K.S. Wadhwa. This judgment only says that a future vacancy that may arises and which is not related to a vacancy that is not filled up by a selection conducted or subsequently again becomes vacant due to resignation of the selected candidate, cannot be filled up from a candidate in the waiting list. This judgment and the observations as is made hereinabove in paragraph 8 has been applied in the case of Kanchan Saxena (supra) and it has been held in the said case that if the selected candidate resigns and the vacancy so arises within the validity period of the list, then a candidate in the reserve list or waiting list can be appointed. ( 8. ) That being so, I am of the considered view that the principle laid down by the Supreme Court in the case of Gujarat State Dy. Executive Engineers Association (supra) and followed by Kanchan Saxena (supra) has been totally misinterpreted by the respondents in the present case. In the present case also, as the selected candidate after joining had resigned and the vacancy that arose is the same vacancy for which advertisements were issued and the selection process took place, the same will go to the candidate in the waiting list or Supplementary List so long as the waiting list or the Supplementary List is within the validity period and alive. The vacancy so arising cannot be treated as a new vacancy for which the selection was not conducted. ( 9. The vacancy so arising cannot be treated as a new vacancy for which the selection was not conducted. ( 9. ) The judgment rendered by the Division Bench of this Court in the case of V.K. Seth (supra) and Dr. B.P Pawar (supra) are clearly distinguishable and will not apply in the present case. In the case of Dr. B.P. Pawar (supra), two posts of Readers in Anatomy alongwith various others posts were advertised by the PSC. Pursuant to the advertisement a select list was prepared and the selected candidates joined on the post. However, subsequently one more post of Reader became vacant and the Commission recommended the name of respondent No.3, in the said case, for appointment. This appointment was challenged and it was held that this subsequent vacancy that is created cannot be filled up by the wait listed candidate as it was a vacancy which was created subsequent to the selection process and was not the one for which the original selection process was held. For holding so, learned Division Bench relied upon an earlier judgment in the case of V.K. Seth (supra), where also the same principle was reiterated. ( 10. ) In the case of V.K. Seth (supra), four posts of specialists in Opthalmology were advertised. The selected candidates as per merit list joined and were working in the post when due to transfer of certain other person holding a different post, a subsequent post became vacant and this post was claimed by a candidate in the reserve list. This was not a case where the vacancy notified and advertised became vacant during the currency of the waiting list or the reserve list, but it was a case where the vacancy that arose was a new and subsequent vacancies, which had no connection with the earlier advertisement and process of selection held. That being so, the principle laid down in the cases of Dr. B.P. Pawar (supra) and V.K. Seth (supra) will not apply in the present case, on the contrary the principle laid down in paragraph 8 by the Supreme Court, in the case of Gujarat State Dy. That being so, the principle laid down in the cases of Dr. B.P. Pawar (supra) and V.K. Seth (supra) will not apply in the present case, on the contrary the principle laid down in paragraph 8 by the Supreme Court, in the case of Gujarat State Dy. Executive Engineers Association (supra), and followed by this Court in the case of Kanchan Saxena (supra) will apply and if the principle laid down therein are followed, then the dissenting note given by respondent No.2 vide Annexure P/l on 17.2.2009 is contrary to the said principle and is liable to be quashed. ( 11. ) That apart, from a perusal of the documents available on record vide I.A.Nos. 11763/2009 and 12793/2009, indicate that the principle laid down in the case of Kanchan Saxena (supra) has been interpreted in the same manner by the MP PSC itself and vide Document I to these applications, and on such interpretation one Shri Kishore Kumar Aharwal, whose name was included in the Supplementary List, has been granted appointment. It is surprising that in Document I to I.A.Nos. 11763/2009 and 12793/2009, PSC has interpreted the judgment in the case of Kanchan Saxena (supra) in the manner which is in conformity with the law laid down in the case of Gujarat State Dy. Executive Engineers Association (supra), and in the case of the petitioners a totally different interpretation based on judgments of the Division Bench is advanced, which is totally misconceived and the said judgments of the Division Bench, in the cases of Dr. B.P Pawar (supra) and V.K. Seth (supra) are distinguishable on facts. ( 12. ) Accordingly, finding the petitioners to be entitled for consideration of their cases for appointment on the vacancies that have risen either due to non-joining of selected candidates as per merit list or resignation or otherwise of the said candidates, respondents are directed to consider the case of the petitioners for appointment to such post, which fell vacant due to the aforesaid eventuality and after applying the principles laid down in the case of Kanchan Saxena (supra), proceed to grant benefit to the petitioners at par with that of Shri Kishore Kumar Aharwal. Necessary action for granting benefit to the petitioners be taken within a period of two month from the date of receipt of certified copy of this order. Necessary action for granting benefit to the petitioners be taken within a period of two month from the date of receipt of certified copy of this order. Petitions stand allowed and disposed of with the aforesaid, without any order so as to costs.