Bihar State Electricity Board Vs. Suresh Prasad & Ors.
Email(From the Judgment and Order dated 31.3.97 of the Patna High Court in L.P.A. No. 1378 of 1996)
(From the Judgment and Order dated 31.3.97 of the Patna High Court in L.P.A. No. 1378 of 1996)
Mr. Sujit K. Singh, Mr.S.B. Upadhyay, Mr. Praveen Swarup, Mr.Irshad Ahmad, Mr.Gopal Prasad, Mr.S.K. Singh, Advocates for the Respondents.
Government service -Appointment of operators in Electricity Board – Position of wait listed candidates placed in the panel but falling beyond the cut off number – Whether they have a right to be appointed if some of those above the cut off number who were offered employment do not join – Pursuant to High Court’s directions appellant Board taking steps for filling up 25 vacancies in the post of operators from Advertisement No.3/86 and remaining 25 vacancies from Advertisement No. 6/92 – Out of 22 candidates selected by the Board from Ad. No.3/86, 18 candidates not joining service – Board making direct recruitment – Respondents 1 to 7 who had applied under Ad. No.3/86 and placed at S. No. 23 onwards in descending order claiming right to appointment and challenging the direct recruitment made by the Board – High Court holding in their favour and directing the Board to appoint respondents 1 to 7 – Whether Board bound to offer posts to wait listed candidates – Whether High Court justified in directing the Board to offer employment to the wait listed candidates. Allowing the appeal of the Board held that there being no requirement in the Recruitment Rules for preparing a waiting list in addition to the panel or requiring the Board to offer posts to the candidates in the waiting list, High Court erred in granting relief to the respondents. Decision in Shankarsan Dash v. Union of India (JT 1991 (2) SC 380) squarely applicable to the facts of the case. Decisions in Jai Narain Ram v. State of UP (JT 1995 (9) SC 123) and Purushottam v. Chairman, MSEB (JT 1999 (9) SC 334), held not applicable.
In the present case pursuant to the direction of the High Court dated 23.3.1994, the appellant took steps for filling up 25 vacancies in the post of Operators from advertisement no. 3/86 and the remaining 25 vacancies from advertisement no. 6/92. The results were notified on 29.4.1994 on the notice board. The Board recommended names of successful candidates under advertisement no. 3/86 and advertisement no. 6/92. Out of 22 candidates selected by the Board for appointment under advertisement no. 3/86, 18 candidates did not turn up. At this stage it is important to note that respondent nos. 1 to 7 had applied for appointment under advertisement no. 3/86 dated 15.12.1986 and they had qualified but they were placed at serial no. 23 onwards in the descending order. As stated above a panel of 22 candidates was prepared for appointment under advertisement no. 3/86 and respondent nos. 1 to 7 fell beyond cut off number. We are not shown any statutory recruitment rules which require the appellant-Board to prepare a waiting list in addition to the panel. The argument advanced on behalf of respondent nos. 1 to 7 was in effect that when 18 candidates failed to turn up the appellant was bound to offer posts to candidates in the waiting list. No such rule has been shown to us in this regard. In our view, the judgment of this Court in the case of Shankarsan Dash v. Union of India (JT 1991 (2) SC 380) squarely applies to the facts of this case. Further there was no infirmity in the judgment of this Court delivered on 4.12.1998 and in our view with respect there was no need to recall the said judgment. (Para 7)
In the present case, we are not concerned with the appointments to reserved posts. Therefore, the judgment of this Court in Jai Narain Ram v. State of U.P. & Ors (JT 1995 (9) SC 123) has no application to the facts of the present case. (Para 8)
A bare reading of the judgment of this Court in Purushottam v. Chairman MSEB & Another (JT 1999 (9) SC 334) shows that it was the case of usurpation of the post as the appellant was duly selected and he was not appointed as the Board doubted his status as scheduled tribe. In the circumstances, the judgment of this Court Purushottam v. Chairman, MSEB & Another (supra) has no application to the facts of the present case. (Para 9)
Consequently, the appeal is allowed and the impugned orders of the High Court are set aside. (Para 10)
2. Jai Narain Ram v. State of U.P. & Ors. (JT 1995 (9) SC 123) (Para 5)
3. Shankarsan Dash v. Union of India (JT 1991 (2) SC 380) (Para 4)
1. The short question which arises for determination in this appeal is:
“Whether the High Court was justified in law in giving direction to the appellant to fill up the vacancies which remained unfilled due to candidates not turning up to join the post?”
FACTS:
2. By Employment Notice No. 3/86 advertisement was issued on 15th December, 1986 whereby 100 vacant posts of Operators and 70 vacant posts of Assistant Operators were notified for appointment. In the said advertisement the qualification prescribed for the post of operator was diploma in Electrical and Mechanical Engineering having at least 70% marks. A written test was held by the Bihar State Electricity Board for selection of candidates on 29.11.1987. The oral interviews were held on 27-28th August, 1988. Some Assistant Operators of Bihar State Electricity Board (appellant herein) filed a writ petition in the High Court bearing CWJC no. 6352/88 challenging the proposed direct recruitment in the posts of Operators as contrary to the Standing Orders. This petition was admitted on 18.11.1989 but dismissed on 19.4.1991. However, during the pendency of the said writ petition a Committee was constituted by the appellant on 21.3.1991 to submit a report regarding adjustment to be made in the matter of appointment of Operators and Assistant Operators. On 30.1.1992, a report was submitted by the Committee suggesting that it was not possible to absorb Assistant Operators as Operators. Despite the said report a fresh advertisement was issued vide Employment Notice No. 6/92 on 25.11.1992 calling for applications from candidates to fill up 50 posts of Operators. In terms of the said advertisement dated 25.11.1992, the earlier advertisement dated 15.12.1986 was cancelled. The advertisement dated 25.11.1992 was challenged vide civil writ jurisdiction case no. 12820/92. By judgment and order dated 23.3.1994, the High Court came to the conclusion that the appellant should fill up 50% of the vacancies in the post of Operators from amongst the candidates who had applied pursuant to the advertisement dated 15.12.1986 and the remaining 50% of the existing vacancies in the post of Operators should be filled from candidates who had applied pursuant to the advertisement dated 25.11.1992. In the light of the above directions of the High Court the appellant-Electricity Board notified the selection of 22 candidates pursuant to advertisement no. 3/86 dated 15.12.1986 and 25 candidates against advertisement no. 6/92 dated 25.11.1992. However, out of 22 candidates selected for appointment vide advertisement no. 3/86 dated 15.12.1986 only 4 joined. Consequently 18 vacancies remained unfilled as candidates did not turn up. Consequently respondents nos. 1 to 7 herein (employees) who had applied for appointment pursuant to advertisement notice no. 3/86 dated 15.12.1986 and who had qualified in the written test and oral interviews and who were on the merit list at serial no. 23 and downwards moved the High Court by way of CWJC nos. 3732 and 9213/95 inter alia contending that since 18 out of 22 selected candidates did not join the said respondents nos. 1 to 7 should be given appointment. This relief was granted by the High Court. Being aggrieved the Bihar State Electricity Board came by way of present appeal to this Court.
3. By judgment and order passed by the Division Bench of this Court the civil appeal filed by the Electricity Board was allowed and the impugned order of the High Court was set aside. Thereafter review petition no. 1073 of 1999 was filed. By order dated 18.11.2000 the review petition was allowed and the order of the Division Bench of this Court dated 4.12.1999 was recalled. Consequently, the civil appeal no. 6084/98 has now come once again before this Court.
ARGUMENTS
4. Shri Pramod Swarup, learned counsel appearing on behalf of the appellant submitted that candidates in the merit list have no indefeasible right to appointment even if a vacancy exists. In this connection he placed reliance on the judgment of this Court in the case of Shankarsan Dash v. Union of India1. He contended that the High Court had erred in giving direction to the appellant-Electricity Board to appoint respondent nos. 1 to 7 against 18 vacancies which remained unfilled due to candidates not turning up though they were offered appointments. He contended that out of 22 candidates selected for appointment pursuant to advertisement no. 3/86 dated 15.12.1986 18 vacancies could not be filled as the candidates did not turn up. He submitted that in the merit list respondents one to seven were at serial no. 23 and below. That the Board had approved the panel of 22. That respondent nos. 1 to 7 did not figure in the panel. He submitted that in terms of the judgment of the High Court given earlier dated 23.3.1994 the appellant-Board recommended names of successful candidates under employment notice no. 3/86 and employment notice no. 6/92 and consequently on selection the Board notified the panel of 22 candidates pursuant to advertisement no. 3/86 and 25 candidates against advertisement no. 6/92. In the circumstances he submitted that the High Court by the impugned judgment had erred in directing the appellant-Board to appoint respondents one to seven who were not in the panel. It was further contended that the judgment of the Division Bench of this Court dated 4.12.1998 was based on correct appreciation of facts and therefore the order of recall was not warranted.
5. Shri Sujit K. Singh, learned counsel appearing on behalf of respondent nos. 1 to 7 submitted that pursuant to the advertisement no. 3/86 respondents one to seven were put on the merit list at serial no. 23 onwards in the descending order. He contended that when 22 posts were notified by the appellant against advertisement dated 15.12.1986 out of which 18 did not join and therefore the vacancies could have been filled up by appointing the candidates at serial no. 23 and lower thereto. Learned counsel for respondents no. 1 to 7 further submitted that instead of preparing the panel in respect of 161 vacancies in terms of the judgment and order dated 23rd March, 1994, the appellant came out with a list of only 22 candidates. That no panel was prepared, no merit list was prepared and no reservations were made and consequently there was a violation of the judgment and order of the High Court dated 23rd March, 1994. Hence, writ petition no. 3732 of 1995 was moved before the High Court claiming that the panel prepared by the board was not in terms of the earlier judgment of the High Court dated 23rd March, 1994. That the High Court was right in directing the appellant to prepare a fresh panel with respect to 18 vacant posts, as 18 out of 22 candidates did not join in the earlier round. It was submitted that, in the circumstances, no interference is called for. He submitted that the High Court was, therefore, right in directing the appellant-Board to fill up the vacancies under advertisement no. 3/86 of 22 posts of Operators by proceeding in the descending order from 23 and beyond. In support of his arguments, Mr. Singh has relied upon the judgments of this Court in Jai Narain Ram v. State of U.P. & Ors.1 and Purushottam v. Chairman, MSEB2 .
FINDINGS:
6. We find merit in this appeal preferred by the Board. In the case of Shankarsan Dash v. Union of India (supra) it has been held by this Court that even if number of vacancies are notified for appointment and even if adequate number of candidates are found fit the successful candidates do not acquire any indefeasible right to be appointed against existing vacancies. That ordinarily such notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. It was further held that the State is under no legal duty to fill up all or any of the vacancies unless the relevant recruitment rules indicate. In the present case we are not shown any such relevant recruitment rules. Moreover, there is no merit in the contention advanced on behalf of respondents no.1 to 7 that the appellant had violated the order of High Court dated 23rd March, 1994 by preparing a list of only 22 candidates instead of filling up 50% of the alleged 161 vacancies. In this connection, the impugned judgment of the High Court has recorded a finding of fact that the Board has rightly reduced the number of vacancies to 50 and to that extent claim of the writ petitioners was rejected. In the impugned judgment, the High Court found that 50 vacancies were required to be filled up 25% against the advertisement dated 15th December, 1986 and 25% against advertisement dated 25.11.1992. However, according to the impugned judgment, the appellant ought to have made appointments by preparing a further panel for 18 vacant posts which became vacant when the earlier 18 selected candidates opted out. It is the part of the reasoning of the High Court, which is fallacious.
7. In the present case pursuant to the direction of the High Court dated 23.3.1994, the appellant took steps for filling up 25 vacancies in the post of Operators from advertisement no. 3/86 and the remaining 25 vacancies from advertisement no. 6/92. The results were notified on 29.4.1994 on the notice board. The Board recommended names of successful candidates under advertisement no. 3/86 and advertisement no. 6/92. Out of 22 candidates selected by the Board for appointment under advertisement no. 3/86, 18 candidates did not turn up. At this stage it is important to note that respondent nos. 1 to 7 had applied for appointment under advertisement no. 3/86 dated 15.12.1986 and they had qualified but they were placed at serial no. 23 onwards in the descending order. As stated above a panel of 22 candidates was prepared for appointment under advertisement no. 3/86 and respondent nos. 1 to 7 fell beyond cut off number. We are not shown any statutory recruitment rules which require the appellant-Board to prepare a waiting list in addition to the panel. The argument advanced on behalf of respondent nos. 1 to 7 was in effect that when 18 candidates failed to turn up the appellant was bound to offer posts to candidates in the waiting list. No such rule has been shown to us in this regard. In our view, the judgment of this Court in the case of Shankarsan Dash v. Union of India (supra) squarely applies to the facts of this case. Further there was no infirmity in the judgment of this Court delivered on 4.12.1998 and in our view with respect there was no need to recall the said judgment.
8. Before concluding we may refer to two judgments cited on behalf of the respondents. In Jai Narain Ram v. State of U.P. & Ors (supra) four out of fifteen posts were reserved for members of the scheduled castes. Four candidates were selected by the Public Service Commission. They did not join the service. As a consequence, four reserved posts fell vacant and they were required to be filled up by the reserved candidates alone. The PSC had recommended the names of four candidates who did not join. The appellant could not be recommended as there was no request by the government for putting the appellant in the waiting list. Therefore, the appellant approached the High Court for a direction to the PSC to recommend his name for appointment in the accounts service. The High Court dismissed the writ petition on the ground that the appellant was not put in the select list and, therefore, no direction could be given to appoint him in the service. Being aggrieved, the appellant came before this Court by way of special leave petition, in which he alleged that since the selected candidates did not join, the four reserved posts fell vacant and they were required to be filled up by the reserved candidates and since he was a reserved category candidate duly selected, he was entitled to be appointed. In the counter affidavit, it was conceded by the respondent before this court that the reserved posts can be filled up by the candidates of the reserved categories only. In the circumstances, this Court took the view that in view of the admission made on behalf of the ~4~ government that reserved posts can be filled up by the candidates of reserved categories only, the government was directed to issue an order of appointment to the appellant. A bare reading of the judgment shows that the matter was concerning filling of a reserved post. Further, a concession was made in the counter affidavit filed on behalf of the respondent government that since the posts were reserved posts, they can only be filled up by the candidates of reserved categories. In the present case, we are not concerned with the appointments to reserved posts. Therefore, the judgment of this Court in Jai Narain Ram v. State of U.P. & Ors (supra) has no application to the facts of the present case.
9. In the case of Purushottam v. Chairman, MSEB & Another (supra) the appellant was selected against a post reserved for a scheduled tribe candidate. However, the respondent Board doubted his status of scheduled tribe candidate. There was a dispute about his status. Ultimately that dispute was resolved in favour of the appellant who was found a member of the scheduled tribe. Therefore, he approached the High Court. Before the High Court, the respondent Board contended that appointment could not be given to the appellant because pending the dispute on the status of the appellant, some other person has been appointed, therefore, there was no vacancy. It was contended that the term of the penal had also expired and, therefore, the appellant could not be appointed. It was held by this Court that usurpation of the post by someone else was not due to the fault of the appellant but on account of the erroneous decision of the Board and consequently, the Board was directed to appoint the appellant. A bare reading of the judgment of this Court in Purushottam v. Chairman MSEB & Another (supra) shows that it was the case of usurpation of the post as the appellant was duly selected and he was not appointed as the Board doubted his status as scheduled tribe. In the circumstances, the judgment of this Court Purushottam v. Chairman, MSEB & Another (supra) has no application to the facts of the present case.
10. Consequently, the appeal is allowed and the impugned orders of the High Court are set aside. Consequently, CWJC nos. 3732/95 and 9213/95 are dismissed.
11. In the facts and circumstances, the parties are directed to bear their own costs.
