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Madhya Pradesh High Court · body

2011 DIGILAW 5 (MP)

Arvind Shroti v. State of M. P.

2011-01-03

R.S.JHA, S.R.ALAM

body2011
ORDER 1. This Intra-Court appeal has been preferred against the order date 1 25.10.2010 passed by the learned Single Judge by which the Writ Petition No. 16754/2006 preferred by the appellant has been dismissed. 2. It appears that the appellant being aggrieved by the order of the State Government, dated 21.7.2006 contained in Annexure P-13 rejecting his representation for considering his claim for appointment against the 8th vacant post of Deputy Director, Public Instructions, filed Writ Petition No. 16754/2006 before the learned Single Judge. The learned Single Judge found that the appellant was not included in the waiting list as his name was subsequently deleted from the list for the reason that the experience certificate furnished by him was found forged and illegal. The writ petition was, therefore, dismissed. Hence, this appeal before us. 3. Learned counsel for the appellant vehemently contended that there were 8 vacancies of Deputy Director, Public Instructions, but only 7 posts were advertised. However, since the appellant was at Sr.No.1 in the waiting list, the respondents should have considered his claim for appointment against the 8th vacant post. 4. On the other hand, stand of the respondents-State is that the 8th vacant post is reserved for the Scheduled Caste candidate as per roster and thus, the appellant cannot be appointed against the said post. 5. We do not find any force in the submissions made on behalf of the appellant for the reason that the question as to whether a vacancy which was not the subject-matter of advertisement can be filled up from the waiting list or not is concluded by series of judgments of the apex Court wherein their Lordships have held that appointments in excess of advertised post cannot be sustained, as the same would be a denial and deprivation of constitutional rights enshrined under Articles 14 and 16 of the Constitution of India which ensure equal protection of laws and equality of opportunity to all citizens in the matter relating to employment or appointment to any office under the State. Thus, if any appointment is made in excess of advertised post that would tantamount to denial and deprivation of the constitutional right of its citizens guaranteed under Articles 14 and 16 (1) of the Constitution of India of those citizens who acquired eligibility for the post in question. 6. Thus, if any appointment is made in excess of advertised post that would tantamount to denial and deprivation of the constitutional right of its citizens guaranteed under Articles 14 and 16 (1) of the Constitution of India of those citizens who acquired eligibility for the post in question. 6. In State of Bihar and another v. Madan Mohan Singh and others [ AIR 1994 SC 765 ], the apex Court did not approve filling-up of the vacancy beyond the post advertised. Their Lordships were of the view that after filling-up of the vacancies advertised which was the subject matter of selection got exhausted and came to an end. It has further been held that if the same list is allowed to subsist for the purpose of filling-up other vacancies that would amount to deprivation of rights of other candidates who have become eligible subsequent to the said advertisement and selection process. This view was reiterated by the apex Court in Jitendra Kumar v. State of Haryana [ (2008)2 SCC 161 ]; State of U.P. v. Nidhi Khanna [ (2007)5 SCC 572 ]; Mukul Saikia v. State of Assam [ (2009) 1 SCC 386 ]; High Court of Judicature v. Veena Verma [ (2009)14 SCC 734 ]; and Rakhi Ray v. High Court of Delhi [2010)2 SCC 637]. 7. In the instant case 7 posts were advertised for direct selection to the post of Deputy Director, Public Instructions, in the year 1994. M.P. Public Service Commission conducted the examination to recommend the names of successful candidates for the aforesaid posts. The appellant herein, also applied, however, he was placed at Sr.No.1in the waiting list and hence, he could not be appointed. The appellant being aggrieved with the action of the respondents in not giving him appointment filed the writ petition on the ground, inter alia, that 69 posts of Deputy Director, Public Instructions were sanctioned and as per Recruitment Rules 75% posts of Deputy Director, Public Instructions is to be filled-up by promotion and 25% posts are to be filled-up by direct recruitment. It is the case of the appellant that sanctioned posts are 69 in the cadre of Deputy Director, Public Instructions, and 25% of 69 posts would be 17 posts which are meant for direct recruitment out of which 9 posts since were already filled up in the year 1992, and therefore, 8 posts were available for direct recruitment. It is the case of the appellant that sanctioned posts are 69 in the cadre of Deputy Director, Public Instructions, and 25% of 69 posts would be 17 posts which are meant for direct recruitment out of which 9 posts since were already filled up in the year 1992, and therefore, 8 posts were available for direct recruitment. However, the Department advertised only 7 posts instead of 8 posts which were available and, therefore, the petitioner being at Sr.No.1 of the waiting list should be given appointment against the 8th post. 8. It is not in dispute that the 8th post which was alleged to have been vacant, was not the subject-matter of advertisement nor the selection process was meant to fill up the same. Hence, in view of the exposition of law made by the apex Court the same cannot be filled up from the candidates of waiting list, as issuance of any direction to fill up the post in excess of advertised post would be violative of Articles 14 and 16 of the Constitution of India. 9. The contention of the appellant that since the 8th post is vacant and, therefore, he being at Sr.No.1 in the waiting list, should be appointed, if accepted, it would amount to permitting the respondents to fill up the vacancy which was never advertised. It is pointed out by the learned counsel for the respondents as is apparent from the order of the learned Single Judge that the name of the appellant was subsequently deleted from the waiting list as he had submitted a false experience certificate which on enquiry conducted by the Collector, East Nimad Khandwa and the Collector, Hoshangabad, was found to be forged. The Public Service Commission therefore, relying on the aforesaid report deleted his name from the waiting list. Admittedly, the aforesaid order deleting his name from the waiting list has not been challenged by the appellant. It further appears that the memo of charges has been served on the appellant and the enquiry is yet to be conducted and, therefore, no opinion with regard to submission of forged experience certificate can be expressed in this appeal, as the matter is still under enquiry by the Department. It further appears that the memo of charges has been served on the appellant and the enquiry is yet to be conducted and, therefore, no opinion with regard to submission of forged experience certificate can be expressed in this appeal, as the matter is still under enquiry by the Department. However, it would be open to the appellant to raise all objections before the concerned authority and to adduce evidence in respect of his claim showing the genuineness of the experience certificate furnished by him. 10. Besides that, even if name of the appellant is included in the waiting list then also no relief can be granted in this appeal in view of the settled legal proposition that any appointment made beyond the number of vacancies advertised is without jurisdiction as it is in violation of Articles 14 and 16 of the Constitution of India and once notified vacancies are tilled up the process of selection comes to an end. In view of the above, we do not find any error in the order of the learned Single Judge and the appeal, being devoid of merit, stands dismissed. However, liberty is granted to the appellant to defend the charges of furnishing false and forged experience certificate before the departmental authorities. In the result, the appeal fails and is dismissed, but without costs.