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J&K High Court · body

2019 DIGILAW 279 (JK)

Liyakat Hussain Baniya v. State of J&K

2019-05-17

ALI MOHAMMAD MAGREY

body2019
Judgment 1. Outcome of this petition hinges on determination of a short but significant question which is: whether a candidate in a selection process securing a merit position below the wait listed candidate can lay a claim for selection and appointment against the advertised post in the event the wait listed candidate does not join against the post when appointment is offered to him on account of non-joining of the selected candidate? The backdrop of the circumstances in which the above question arises is noticed hereunder. 2. The petitioner had offered his candidature for selection against the post of Accounts Assistant (ST category), District Cadre Shopian, advertised by the Jammu and Kashmir Services Selection Board (the Board) at serial no.326 of its advertisement notice no.03 of 2014 dated 30.12.2014, the intending department being the Finance Department. The Board, at the culmination of the selection process, vide its communication no.SSB/Sel/Secy/2016/19683-38 dated 31.08.2016 forwarded the selection list containing the name of a lone candidate alongwith a waiting list, also containing the name of a lone candidate, to the Department. Consequent to the above, the Finance Department, vide Order no.253-Acctts. of 2016 dated 06.12.2016, accorded sanction to the deputation of the selected candidate to the Accounts Training School where he was required to report within 21 days of the issue of the order. It appears that while the Department had yet to act on the selection list so forwarded to it by the Board, the petitioner made a representation addressed to the Directorate General, Accounts and Treasuries, bringing it to his notice that the selected candidate and the candidate figuring in the waiting list had tendered affidavits stating that they did not intend to join, and requesting him to direct the concerned authorities to process his case for selection / appointment in accordance with norms. The above representation, a copy of which has been placed on record as annexure D at page 21 of the writ petition, bears receipt no.2041 dated 01.12.2016 of the Directorate General, Accounts and Treasuries, Finance Department. 3. The above representation, a copy of which has been placed on record as annexure D at page 21 of the writ petition, bears receipt no.2041 dated 01.12.2016 of the Directorate General, Accounts and Treasuries, Finance Department. 3. Be that as it may, it further appears that the Deputy Director (Central), Accounts and Treasuries, Finance Department, vide communication no.DGAT/E-III/G-21/81 dated 02.06.2017, wrote to the Secretary of the Board that neither the selected candidate nor the candidate recommended in waiting list under ST category had joined against the post, and requested him to recommend another eligible candidate from the category in order of merit so that the resultant vacancy was filled up. In response thereto, the Board through its Administrative Officer, vide Annexure „A” to letter no. SSB/Secy/Sel/183/2016/4744-46 dated 26.08.2017, communicated to the Principal Secretary to Government, Finance Department, the particulars of the candidate falling next in order of merit and recommended him for the said post (hereinafter, for the sake of convenience, referred to as the supplementary waiting list). While doing so, it was specifically mentioned in the supplementary waiting list that the panel was recommended purely on the request made by Deputy Director (Central), Accounts and Treasuries, Finance Department, vide his letter dated 02.06.2017. 4. It has been thereafter that the petitioner, who was the candidate named in the supplementary waiting list, filed the present writ petition on 04.10.2017 praying therein that the respondents, more particularly respondents 1 and 3, i.e., the Commissioner/Secretary to Government, Finance Department, and the Director General, Accounts and Treasuries, Finance Department, be directed to act upon the recommendation made by respondent no.2 in his favour and appoint him on the post of Accounts Assistant in District Cadre, Shopian, under the ST category, with further direction to them not to re-advertise the post in question. His case is that since he figured in the merit list after the wait listed candidate, who did not join against the post, and was recommended by the Board in terms of the supplementary waiting list, a right has accrued to him for being appointed against the post, but the respondents were unjustifiably denying him such right. It is averred that respondent no.3 has not shown any legal infirmity in issuing appointment order in favour of the petitioner. 5. It is averred that respondent no.3 has not shown any legal infirmity in issuing appointment order in favour of the petitioner. 5. The respondents have filed their objections/reply stating therein that communication no.DGAT/E-III/G-21/81 dated 02.06.2017 was erroneously issued by the then Deputy Director (Central), Accounts and Treasuries, and that the recommendation made by the Board pursuant thereto in terms of the supplementary waiting list in favour of the petitioner was returned in original to the Board without any process, the same being against standing norms/rules. It is also stated therein that there is no rule to provide a supplementary waiting list and this position was clarified by the Board earlier in terms of communication dated 10.09.2015. It is further stated in the objections/reply that since the petitioner”s name did not figure either in the select list or the waiting list, which both were acted upon, he has no right or locus to claim selection and appointment against the post. 6. I heard learned counsel for the petitioner and Mr. D. C. Raina, learned Advocate General assisted by Mr. Mir Suhail, AAG. 7. It is very important to mention here at the very out-set that in their reply, the respondents took a clear stand that the supplementary waiting list recommended by the Board was returned to it in original without taking any action as the same was against norms and rules on the subject. To buttress the aforesaid stand taken in the reply, Mr. Mir Suhail, AAG, assisting the learned Advocate General in the case, at the final hearing of the case, produced photocopy of a communication no.DGAT/E-III/G-21/144 dated 18.09.2017 written by the Deputy Director (Central), Accounts and Treasuries, Finance Department, to the Secretary of the Board returning to him, in original, the supplementary waiting list in respect of next candidate in order of merit, without any process. This communication is taken on record. It is seen that this communication has been written on 18.09.2017, i.e., immediately after the receipt of the fresh panel / supplementary waiting list from the Board vide communication dated 26.08.2017. This communication is taken on record. It is seen that this communication has been written on 18.09.2017, i.e., immediately after the receipt of the fresh panel / supplementary waiting list from the Board vide communication dated 26.08.2017. Thereby the Deputy Director (Central), Accounts and Treasuries, Finance Department, wrote back to the Secretary of the Board that as per records letter dated 02.06.2017 had been issued without the approval of the competent authority and in violation of standing instructions issued by the Board vide no.SSB/Sel/Secy/2015/9354 dated 10.09.2015, and that there was no rule to provide a supplementary wait list. Accordingly, the said wait list was returned to the Board in the following words:— “In view of above, the undersigned is directed to inform that the waiting list in respect of next candidate in order of merit forwarded/recommended by SSB being against the rules/norms is hereby returned in original without any process at this end.” 8. It is seen that the petitioner filed the present writ petition on 04.10.2017, i.e., 16 days after the aforesaid communication dated 18.09.2017 was written by the Finance Department to the Board, returning the supplementary waiting list in question giving reasons therein for not acting thereon. The petitioner has conspicuously and conveniently omitted to make a mention of the said communication no.DGAT/E-III/G-21/144 dated 18.09.2017 addressed by the Deputy Director (Central), Accounts and Treasuries, Finance Department, to the Secretary of the Board, returning in original to him the panel / supplementary waiting list containing the name of the petitioner on the ground of the same being against the rules/norms on the subject. Inferentially, he has suppressed this fact in his writ petition and has thus come to the Court not with clean hands. Suppression of a material fact from the Court disentitles a litigant from equitable relief, for the celebrated legal maxim is one who seeks equity must come clean to the Court. This is one aspect of the matter. The other is that the petitioner has also not challenged the said communication in his writ petition, though a mention of the return in original of the supplementary waiting list to the Board was specifically mentioned in para 11 of the objections filed on behalf of the respondents on 19.02.2018. So, ignorance of this fact and of the communication is ruled out. 9. So, ignorance of this fact and of the communication is ruled out. 9. Be that as it may, coming to the core question involved, one needs to go to the Rules governing the subject viz., the Jammu and Kashmir Civil Services Decentralization and Recruitment Rules, 2010 ( hereafter, the Rules) as amended from time to time. It be seen that Rule 14 of the Rules under Chapter IV thereof prescribes the procedure for preparation of select lists by the Board. At the time the advertisement notice was issued, it read as under:— “14. Procedure for preparation of select lists by the Board.— (1) The respective Selection Committee of the Board shall ordinarily restrict the number of applicants for oral and / or written test, as the case may be, to at least five times the number of vacancies on the basis of academic merit in the qualifying examination converted into points on pro rata basis out of the total points allocated for the basic eligibility/qualification and grant of weightage for the higher qualification in the discipline concerned to be allowed in the manner and to extent as the Board may deem appropriate for according due consideration to the merit and proficiency in higher qualification: Provided that the committee may, for reasons to be recorded in writing, conduct a written test for short listing the candidates for admission to the oral test and for purpose of selection of candidates. (2) The Board shall prescribe such pro-formae, as are required for reference of vacancies by, and for communicating the select lists, to the requisitioning authorities from time to time. (3) The respective Selection Committees, while making selections and allocating candidates to various cadres, shall take into account the reservations made from time to time for various categories subject to the provisions of sub-rule (5) of rule 13. (4) The select list so finalized by the respective Committees shall be equal to the number of vacancies for which requisition was made and recommend it to the requisitioning authority with prior approval of the Board. (5) The select list shall remain in force for a period of one year from the date the select list is sent to the requisitioning authority. (5) The select list shall remain in force for a period of one year from the date the select list is sent to the requisitioning authority. (6) The appointing authority, for reasons to be recorded, may not accept the select list received from the Board and return the same to the Board for reconsideration by the respective Selection Committees: Provided that no such action shall be taken by the appointing authority without prior approval in writing of the Administrative Department. (7) The concerned Selection Committees of the Board shall also draw up a waiting list of 25% of the total number of selected candidates and forward the same, through the Board, to the requisitioning authority for consideration against drop-out vacancies. The waiting list shall remain in force for a period of one year from the date the original select list is sent to the requisitioning authority. The Selection Committees shall not maintain or recommend any select or waiting list for any future vacancy or any vacancy caused on account of resignation by any selectee after appointment. (8) The appointing authority shall restrict the appointments to the extent of referred vacancies only and any violation thereof shall subject the officer concerned to disciplinary proceedings and any appointment in excess of the referred vacancies shall not confer any right on such appointee to hold such post.” Subsequently, by SRO 439 dated 11.12.2015, an amendment was made in Rule 14 to the following effect:— “Government of Jammu and Kashmir Civil Secretariat––General Administration Department (Monitoring Section) Notification Jammu, the 11th December, 2015. SRO-439.––In exercise of the powers conferred by section 124 of the Constitution of Jammu and Kashmir read with section 15 of the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010, the Government hereby direct that the following amendments be made in the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Rules, 2010, namely:–– “In rule 14 of the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Rules, 2010–– (I) for sub-rule (1), the following shall be substituted, namely:–– ‘(1) (a) The Board/Selection Committee shall conduct written test for all the posts advertised in terms of rule 13; (b) The Board/Selection Committee shall, based on the merit obtained by the candidates in written test conducted in terms of clause (a), prepare a merit list of candidates and on the basis of merit obtained by the candidates in the written test, conduct an oral test which may be restricted to five times the number of posts/vacancies advertised; (c) The Board/Selection Committee shall prepare a Select List equal to the number of posts/vacancies for which requisition was made by the requisitioning authority on the basis of aggregate merit obtained by candidates in the written test and the oral test conducted in terms of clauses (a) and (b).’ (II) In sub-rule (7) for the words “25% of the total number of selected candidates”, the words “33.33% (l/3rd) of the total number of posts advertised subject to a minimum of one candidate” shall be substituted.” 10. Before analysing what does the above Rule 14 of the Rules demand of the Board to do, it is to be borne in mind that this Rule prescribes the procedure to be followed by the Board in making the selection of a meritorious candidate in a selection process. It is a matter of common knowledge that procedural law, herein Rule 14 of the Rules, does not create a right; it simply is a means of discharging the State’s obligation to fulfil the right to consideration guaranteed by the Constitution to the competing candidates in a selection process. It is also a fact that such fundamental right is not and cannot be absolute; it by its nature has to be subject to certain limitations, depending upon the circumstances in a given situation. In that context classification and process of elimination in a selection process also permit and bring about such limitations on such right. It is also a fact that such fundamental right is not and cannot be absolute; it by its nature has to be subject to certain limitations, depending upon the circumstances in a given situation. In that context classification and process of elimination in a selection process also permit and bring about such limitations on such right. In fact, in certain situations elimination takes place by reason of the discharge of the obligation and liability of affording right of consideration. This can be explained as hereunder: 11. Suppose a certain number of eligible candidates, say 10, respond to an advertisement notice notifying a single post and that the procedure governing the selection process provides that these candidates be put to written test for short-listing for purposes of oral test / viva voice / interview. Suppose further that the procedure also provides that five of the meritorious candidates in the written test out of the 10 candidates be called for interview. So, five candidates out of the ten, who do not make the grade to entitle them to be called for interview, are eliminated at this stage in fulfilment of their right to consideration guaranteed under the Constitution. Now, these five candidates cannot claim any right to be included in the further process required to be undertaken by the Board to complete the process of selection. Assuming a situation that one of the five candidates, who make the grade and are called for oral test, by any reason, does not, or is not likely to, appear for the oral test, the eliminated candidate possessing the highest marks in the written test in the eliminated group, cannot claim his substitution for the missed out candidate to be called for interview, for, his right to consideration stands fulfilled at the stage of the written test itself. Now, out of the candidates who are called for and actually appear at the interview, the Board is required to select a single candidate for the single post advertised, be it on the basis of the performance at the interview alone or on the basis of the aggregate merit obtained in the written test and interview. Obviously, it has to be one amongst the candidates who appear at the interview who does well at such oral test or who secures an aggregate merit higher than the rest. Obviously, it has to be one amongst the candidates who appear at the interview who does well at such oral test or who secures an aggregate merit higher than the rest. Once the select list of the single candidate against the advertised post is made, the others in the group are eliminated for the further process of making recommendation to the Government and such elimination, again, takes place by reason of accord of the right of consideration to them. Now, a situation can be conceived of that the candidate, who is selected, does not turn up to accept the offer of appointment when it is made to him. In such an eventuality, the whole exercise undertaken in the selection process would be rendered futile. To obviate such a situation, rules provide for a candidate to be kept in waiting and he has to be the one having obtained the merit just below and immediately after the selected candidate amongst the group of candidates who have been called for and have appeared at the interview. Factually, he is not selected, but remains in waiting, and if the selected candidate drops out, the candidate in the waiting is appointed in his capacity not being a selected candidate, but in his capacity as being the candidate in the waiting, i.e., waiting list. In the event such a candidate, for any reason, also would not accept the offer of appointment, the matter would end there and no other candidate can claim to be substituted for the wait listed candidate, unless, of course, the Rules expressly provide so. 12. In the present case, Rule 14 of the Rules is no different from what is explained above, and the Board is obliged to strictly follow and observe it in all selection processes. It necessarily follows that in the event the Board, in any manner, observes Rule 14 in breach, it is likely to adversely impact the right to consideration guaranteed to a competing candidate and such candidate would have a cause to seek redressal against such breach. 13. It is seen that Rule 14 of the Rules read with the amendments made therein by SRO 439 of 2015 obliges the Board to restrict the select list to the number of vacancies for which the requisition has been made. 13. It is seen that Rule 14 of the Rules read with the amendments made therein by SRO 439 of 2015 obliges the Board to restrict the select list to the number of vacancies for which the requisition has been made. In that connection, the Board is obliged to conduct written test of the candidates and prepare a merit list of candidates, restricted to five times the number of posts/vacancies advertised, to be called for oral test. Then the Board is required to prepare a select list of candidates (equal to the number of posts/vacancies for which requisition was made by the requisitioning authority) on the basis of aggregate merit obtained by candidates in the written test and the oral test so conducted. So, going by the scheme of the Rules, the candidates who fail to make it to the group of five times the number of vacancies advertised get eliminated in a process of exercise of their right to consideration at the stage of the written test. Then out of the candidates who appear at the oral test the candidate(s) who stands/stand out on the basis of aggregate merit obtained in the written test and the oral test makes/make to the select list, eliminating the rest, again, in a process of exercise of their right to consideration. However, to ensure that the selection process is not rendered meaningless, a limited safeguard is provided in terms of sub-rule (7) obliging the Board to draw up a waiting list of 33.33% of the total number of selected candidates, subject to the minimum of one candidate, and forward the same to the requisitioning authority for consideration against drop-out vacancies, if any. It is to be borne in mind that, normally, a waitlisted candidate does not stand any chance of appointment, unless the selected candidate drops-out. It is only when the selected candidate drops-out, that in terms of Sub-Rule (7) of Rule 14, the waitlisted candidate is to be considered for appointment. This consideration has to be accorded to him in his capacity as being such waitlisted candidate. It is not that on the dropping out of the selected candidate a new select list is to be prepared by pushing the waitlisted candidate up to occupy his place and another candidate from the merit list would occupy his place in the waitlist. This consideration has to be accorded to him in his capacity as being such waitlisted candidate. It is not that on the dropping out of the selected candidate a new select list is to be prepared by pushing the waitlisted candidate up to occupy his place and another candidate from the merit list would occupy his place in the waitlist. In fact, going by the Rule 14 as it is, it is not within the competence of the intending department or even the Board to prepare a fresh select list by brining up the wait-listed candidate into the select list and then to re-draw the wait list afresh. The obligation cast on the Board by Rule 14(7) as amended by SRO 439 is to keep a minimum safeguard to meet a drop out eventuality and such safeguard is restricted to the given percentage of posts, subject to the minimum of one post, not beyond that. The Rule 14 does not prescribe any remedy for a situation as is attendant in the present case. So what is not expressly, or even impliedly, provided in the Rule cannot be read in it. The intention of the Rule clearly is to give a quietus to the process at that. 14. Coming to the present case, there was only one post of Accounts Assistant advertised and, after the selection process was completed, the Board duly prepared a select list containing the name of the candidate who stood out in the selection process and recommended him to the intending department. The Board also prepared the wait list of the candidate falling next in merit. The petitioner has, admittedly, failed to make it to the select or the waiting list. He, therefore, stands ousted from any further process, on account of his failure to make either to the select list or the waiting list, in exercise of his right to consideration afforded to him by the Board in the shape of written test and the oral test. In the event the selected candidate and, after him, the wait listed candidate chose not to take the appointment, the petitioner cannot claim his substitution for the wait listed candidate, nor has he any right to claim so. 15. The reliance placed by Mr. In the event the selected candidate and, after him, the wait listed candidate chose not to take the appointment, the petitioner cannot claim his substitution for the wait listed candidate, nor has he any right to claim so. 15. The reliance placed by Mr. Nissar on the supplementary list, contending that the Department itself requisitioned it and that the respondents were obliged to act upon it, is wholly misconceived so is his reliance placed by him on the decisions of the Supreme Court as would be referred to later in this judgment. It is to be borne in mind that Rule 14 does not provide for such a course being adopted. In fact, earlier, probably, in context of an earlier selection process, the Board had itself written to the Finance Department that there was no rule to provide a supplementary wait list. In fact, while forwarding the name of the petitioner by way of the supplementary list, the Board in clear terms stated in the communication dated 26.08.2017 that such panel was recommended purely on the request made by the Deputy Director (Central), Accounts and Treasuries, Finance Department, meaning thereby that the Board was conscious that such course was not permissible. One more thing is note worthy which is that the Board did not send this supplementary list to the Deputy Director (Central), Accounts and Treasuries, Finance Department, but to the Principal Secretary to Government, Finance Department, suggesting thereby that it wanted to bring to the notice of the higher authority of the Department that something dehors the rules was being called for from it, and the Department quickly responded, vide its communication dated 18.09.2017, returning the supplementary list to it in original, without any action thereon, admitting that the earlier communication dated 02.06.2017 had been written erroneously. So, for all practical purposes, the request made in communication dated 02.06.2017 stood withdrawn and the supplementary list returned as dehors the rules and norms. This removes the foundation underneath the claim of the petitioner and his prayer made in this writ petition. 16. Let me now refer to the judgments cited at Bar by the learned counsel for the petitioner, viz., Prem Singh v Haryana State Electricity Board, (1996) 4 SCC 319 ; State of Jammu and Kashmir v Sat Pal, (2013) 11 SCC 737 ; and Manoj Manu v Union of India, (2013) 12 SCC 171 . 16. Let me now refer to the judgments cited at Bar by the learned counsel for the petitioner, viz., Prem Singh v Haryana State Electricity Board, (1996) 4 SCC 319 ; State of Jammu and Kashmir v Sat Pal, (2013) 11 SCC 737 ; and Manoj Manu v Union of India, (2013) 12 SCC 171 . At the outset, I may say that none of these judgments are attracted to the facts attendant in the instant case. 17. In Prem Singh v Haryana State Electricity Board (supra), the point in issue was whether the State can make more appointments than the number of posts advertised? The Supreme Court held that no; State cannot do so even though it might have prepared a select list of more candidates. It was held that the State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and, that too, by taking a policy decision in that behalf. Such is not the fact involved in the instant case. 18. In State of Jammu and Kashmir v Sat Pal (supra), the writ petitioner before the Writ Court, i.e., the respondent in the appeal before the Supreme Court, namely, Sat Pal, participated in the selection process for appointment against the posts of Junior Engineer (Civil) Grade II and he figured in the final merit / select list of the Scheduled Caste candidates. Having learnt that some Scheduled Caste candidates above him in the merit / select list had not joined inspite of having been offered appointment, Sat Pal made a representation seeking appointment against an available vacancy. In his representation, he mentioned the name of one Trilok Nath as one of the selected candidates who had been offered appointment, but had not joined. He also pointed out that in the merit / select list pertaining to the Scheduled Cast candidates, his name figured immediately after the name of said Trilok Nath. His representation having remained undecided, he approached the High Court. The rules governing the subject envisaged drawing of a merit / select list of candidates and that the merit list of candidates in continuation of those offered appointment would constitute the waiting list which would be valid for a period of one year. His representation having remained undecided, he approached the High Court. The rules governing the subject envisaged drawing of a merit / select list of candidates and that the merit list of candidates in continuation of those offered appointment would constitute the waiting list which would be valid for a period of one year. Though the State respondents did not file any pleadings in the case before the High Court, yet they took the stand that the waiting list was valid for only one year. The High Court disposed of the writ petition, directing the appointing authority to examine the claim of the writ petitioner for his appointment against the post keeping in mind the fact that Trilok Nath, who had been offered appointment against the post, had declined to join. The Government, however, passed an order rejecting the claim of the writ-petitioner on the ground that the waiting list had outlived its validity way back in May, 2008 itself. The writ petitioner filed contempt petition. The Contempt Court disposed of the contempt petition holding, inter alia, that the claim of the petitioner for his appointment as Junior Engineer (Civil) Grade II arose during the validity of select list / wait list and a duty was cast on the competent authority, who was seized of the select list / wait list, to fill up the vacancies from the wait list, but it failed to perform its duty. The Court directed that before initiating action for framing rule, it will be appropriate to afford an opportunity to the respondents to consider the whole issue and pass orders in accordance with the judgment of the Writ Court, and directed accordingly. The State respondents in the writ petition challenged this order in LPA before the Division Bench which, however, was dismissed as not maintainable. The State respondents then filed SLP before the Supreme Court. The Supreme Court found that name of the writ petitioner, respondent before it, figured in the waiting list. It was held that once Trilok Nath, who figured in the list just above the respondent, had declined the offer of appointment within the currency of the waiting list, the State Government ought to have offered the appointment to the respondent. It is in that context that directions were issued. It is thus seen that the name of the respondent therein figured in the select list / waiting list of the candidates. It is in that context that directions were issued. It is thus seen that the name of the respondent therein figured in the select list / waiting list of the candidates. Such is not the case here. Herein, the petitioner has failed to make to the waiting list. The judgment, therefore, is not attracted to the facts of the present case. 19. So far as Manoj Manu v Union of India (supra) is concerned, therein Clause 4(c) of the relevant Office Memorandum dated 14.07.1967 provided that if some of the candidates recommended / allotted for appointment against the specific number of vacancies reported in respect of a particular examination do not become available for one reason or another, the Commission may be approached, within a reasonable time, with request for replacements from the reserved, if available. So, therein the Office Memorandum, which governed the subject, itself provided that the Department could approach the Commission for replacements and such replacements had to be requested for from the „reserved”, meaning thereby that the Commission was obliged to maintain a reserved list and only such candidates as figured in the reserved list could be sent as replacements. Reserved list is almost the same thing as a waiting list in the instant case. Apart from the fact that there being no provision in Rule 14 of the Rules herein envisaging a provision akin to the aforesaid Office Memorandum, the petitioner herein, as already held, had failed to secure a place in the waiting list. Besides, therein despite the fact that the appellants before the Supreme Court figured in the reserved list and despite the permissible request of the Department, the Commission had without any justification declined to send the names of the appellants as replacement candidates. In nutshell, the judgment is wholly distinguishable. 20. For all what has been observed and discussed hereinabove, the answer to the question involved and pointed out in the first paragraph of this judgment is held to be no, a candidate in a selection process securing a merit position below the wait listed candidate cannot lay any claim of selection and appointment against the advertised post in the event the wait listed candidate does not join against the post when appointment is offered to him on account of non-joining of the selected candidate. 21. This writ petition thus merits dismissal and is, accordingly, hereby dismissed. 21. This writ petition thus merits dismissal and is, accordingly, hereby dismissed. Interim direction, if any passed and subsisting, shall stand vacated. 22. No order, however, as to costs.