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2014 DIGILAW 206 (UTT)

Anil Kumar v. State of Uttarakhand

2014-05-06

SUDHANSHU DHULIA

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Judgment Sudhanshu Dhulia, J. The petitioner, before this Court, was a candidate for the selection process to the post of Instructor, Government Industrial Training Institutes. His candidature was for the post of Instructor (Arts/Mathematics). Petitioner participated in the selection process and though his name did not figure in the select list of Schedule Caste candidates but his name figured in the select waiting list at serial no. 2 in the Schedule Caste category. 2. Case of the petitioner is that the result was declared on 27.08.2010. Total number of post for the Instructor (Arts/Mathematics) were 106, out of which 23 posts were reserved for Scheduled Caste Category candidates, against these 23 posts, only 19 candidates have joined as Instructor in the Scheduled Caste Category and 04 posts were left vacant. The last offer given to the selected candidates was by way of an advertisement dated 16.12.2012 published in Amar Ujala Hindi daily newspaper, a fact which is admitted to the respondents. According to the petitioner, 04 posts of Schedule Caste Category still remained vacant. None of the selected candidates joined these posts. What should have followed therefore was that the offer should have been made the person placed at Serial No.1 in the waiting list of Scheduled Caste Category candidates and thereafter in case, he refuses to join, the offer should have been made to the petitioner, as he was no. 2 in the wait list. In any case, since 04 posts remained vacant in the category of Scheduled Caste and petitioner’s name figured at serial no. 2 in the waiting list of the Schedule Caste candidates, he was liable to be given offer for appointment. Since this was not done, present petitioner made an application for appointment which was declined. 3. Aggrieved, petitioner filed writ petition being Writ Petition No.423 (SS) of 2013, which was disposed of vide order dated 23.04.2013 with the direction to respondent no.2 to take action in accordance with law on the select list prepared, as a consequence of this, his representation has been disposed of vide order dated 8th July, 2013 by which the appointment has been denied to the petitioner giving the reasoning that the select waiting list was declared on 27.08.2010 and the period of a waiting list is only one year, which has now been exhausted. 4. Aggrieved, the petitioner filed present writ petition. 5. 4. Aggrieved, the petitioner filed present writ petition. 5. In the counter affidavit, the State has taken the same stand that the appointment could have been given to the petitioner as the waiting list survives for one year and it does not survive beyond one year. 6. Select list was declared on 28.08.2010 and the petitioner moved the writ petition in the year 2013. The stand of the petitioner in this regard seems to be wrong, inasmuch as, there were 23 posts of Schedule Caste candidates for the post of Instructor out of which 19 posts were filled and 04 posts remained vacant, a fact which is admitted by the respondents. It is not the case of the respondents that selected candidates joined these posts and thereafter had resigned from the post and the vacancies arose because of their resignation. Therefore, the period of limitation for one year for the waiting list actually starts from the date, the entire select list has been filled up. This occasion in the present case has never arose as till 16th December, 2012 respondents were requesting the selected candidates to join the posts, in other words the vacancies had not filled up. 7. In view thereof, to take a stand now that the waiting list cannot operate beyond one year is wholly incorrect. The Hon’ble Supreme Court in the case of State of J&K & Ors. Vs. Satpal, rendered in Civil Appeal No.938-939 of 2013 [arose out of SLP (C) Nos.31591-31592 of 2012] has held that:- “In view of the factual position noticed herein above, the reason indicated by the appellants in declining the claim of the respondent Sat Pal for appointment out of the waiting list is clearly unjustified. A waiting list would start to operate only after the posts for which the recruitment is conducted, have been completed. A waiting list would commence to operate, when offers of appointment have been issued to those emerging on the top of the merit list. The existence of a waiting list, allows room to the appointing authority to fill up vacancies which arise during the subsistence of the waiting list. A waiting list commences to operate, after the vacancies for which the recruitment process has been conducted have been filled up. The existence of a waiting list, allows room to the appointing authority to fill up vacancies which arise during the subsistence of the waiting list. A waiting list commences to operate, after the vacancies for which the recruitment process has been conducted have been filled up. In the instant controversy the aforesaid situation for operating the waiting list had not arisen, because one of the posts of Junior Engineer (Civil) Grade-II for which the recruitment process was conducted was actually never filled up. For the reason that Trilok Nath had not assumed charge, one of the posts for which the process of recruitment was conducted, had remained vacant. That apart, even if it is assumed for arguments sake, that all the posts for which the process of selection was conducted were duly filled up, it cannot be disputed that Trilok Nath who had participated in the same selection process as the respondent herein, was offered appointment against the post of Junior Engineer (Civil) Grade-II on 22.4.2008. The aforesaid offer was made, consequent upon his selection in the said process of recruitment. The validity of the waiting list, in the facts of this case, has to be determined with reference to 22.4.2008, because the vacancy was offered to Trilok Nath on 22.4.2008. It is the said vacancy, for which the respondent had approached the High Court. As against the aforesaid, it is the acknowledged position recorded by the appellants in the impugned order dated 23.8.2011 (extracted above), that the waiting list was valid till May, 2008. If Trilok Nath was found eligible for appointment against the vacancy in question out of the same waiting list, the respondent herein would be equally eligible for appointment against the said vacancy. This would be the unquestionable legal position, in so far as the present controversy is concerned” 8. In the above referred case as well as here before this Court, the stand taken by the respondents was that the petitioner’s case could not be considered as the waiting list does not survive beyond the period of one year. All the same, the Hon’ble Apex Court has held in the above matter that since the waiting list will only commence to operate after the vacancies have been filled up and that occasion had yet not arrived, the “one year period” did not even start to operate. All the same, the Hon’ble Apex Court has held in the above matter that since the waiting list will only commence to operate after the vacancies have been filled up and that occasion had yet not arrived, the “one year period” did not even start to operate. Based on the same logic, present writ petition is allowed. A mandamus is issued to the respondents to give appointment to the petitioner as early as possible but definitely within six weeks from the date of production of certified copy of this order. 9. No order as to costs.