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2021 DIGILAW 135 (ORI)

Kshiroda Prasad Nayak v. Union Of India

2021-03-19

S.K.MISHRA, SAVITRI RATHO

body2021
JUDGMENT 1. In this writ petition , the Petitioner assails the correctness of the judgment dated 22nd January, 2019 delivered by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.260/773/2015 rejecting the application of the Petitioner for a direction to appoint him as Gramina Dak Sevak Mail deliverer/MC, Kanbageri Block under G. Udayagari. 2. The facts of the case are not disputed. The Petitioner was a candidate for the post of Gramina Dak Sevak Mail Deliverer (in short GDSMD), Kanbageri B.O., under G. Udayagairi Sub-division Office. He along with others applied for selection of the aforesaid post. Another candidate secured the first position. The said candidate, who had secured first position joined the post. However, after some time he resigned and thereafter the Petitioner was called upon to produce the original documents for verification. At that time, the Opposite Party No.4 received an instruction from the Higher Authority not to proceed with the appointment of the present Petitioner. Hence he did not issue a letter of appointment. 3. Learned Central Administrative Tribunal, Cuttack Bench, Cuttack held that the action of the Opposite Party No.4 in issuing a letter for production of certificate for verification was improper. It further held that the Petitioner could not produce any rule or instructions showing that when recruitment is made only one post of GDS, after joining of the candidate with higher merit, the merit list shall remain valid and others would be given appointment in the event of subsequent vacancy. In absence of such instruction, the action of Opposite Party No.4 to issue a letter date 23.2.2015 will not be appropriate. Hence, the Tribunal dismissed the application of the Petitioner. 4. Mr. Sanjib Mohanty, learned counsel for the petitioner, relied upon the reported case of Dr. Rajalaxmi Beura v. Vice Chancellor, OUAT & others; reported in 2017 (II) OLR- CUT-923 and contended that in a similar case a Single Bench of this Court had directed the appointment a candidate who was placed at Sl. No.4 in the merit on the resignation of the Sl. No.1, Sl.Nos.2 and 3 having joined elsewhere. He also relied upon a Division Bench judgment of this Court in the case of Shri Gagan Behari Pradhan v. State of Orissa and others reported in 2006(1) OLR 31 . Similar view has been taken by the Division Bench of this Court. 5. No.1, Sl.Nos.2 and 3 having joined elsewhere. He also relied upon a Division Bench judgment of this Court in the case of Shri Gagan Behari Pradhan v. State of Orissa and others reported in 2006(1) OLR 31 . Similar view has been taken by the Division Bench of this Court. 5. However, we rely upon the judgment rendered by the Hon'ble Supreme Court in the case of State of Orissa and another v. Rajkishore Nanda and others; reported in (2010) 6 SCC 777 , we find it appropriate to take note of the exact words used by the Hon'ble Supreme Court in that case (Pages 782 & 783, Paras11,12,13,14,15 & 16):- ' 11. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as 'the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16 (1) of the Constitution', of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permission only after adopting policy decision based on some rational', otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. 12. In State of Punjab v. Raghbir Chand Sharma; (2002)1 SCC 113 , this Court examined the case where only one post was advertised and the candidate whose name appeared at Serial No.1 in the select list joined the post, but subsequently resigned. The Court rejected the contention that the post can be filled up offering the appointment to the next candidate in the select list observing as under: (SCC p.115, para 4); '4... With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and, at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently.' 13. In Makul Saikia v. State of Assam; (2009) 1 SCC 386 , this Court dealt with a similar issue and held that 'if the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised. The select list 'got exhausted when all the 27 posts were filled.' Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The 'currency of select list had expired as soon as the number of posts advertised were filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies' and the said course is permissible in law. 14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the bet is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. 15. A Constitution Bench of this Court in Shankarsn Dash v. Union of India; (1991) 3 SCC 47 held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of the candidate's name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. 16. A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. It is the settled legal proposition that no relief can be granted to the candidate if he approaches the Court after the expiry of the select list. If the selection process is over, select list has expired and the appointments had been made, no relief can be granted by the court a belated stage.' 6. It is the settled legal proposition that no relief can be granted to the candidate if he approaches the Court after the expiry of the select list. If the selection process is over, select list has expired and the appointments had been made, no relief can be granted by the court a belated stage.' 6. Thus in view of such settled principle of law as enunciated by the Hon'ble Supreme Court, we are of the opinion that the petitioner's claim is without merit and the judgment of the learned Single Judge and the Division Bench of this Court cited (supras) are not good law. Hence, the Writ Petition is dismissed. Urgent certified copy of this order be granted on proper application.