# Arun Kumar Singh v. State of U.P. and others

- **Citation:** (2005) 2 ILRA 675
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-08
- **Case number:** Civil Misc. Writ Petition No. 3447 of 2002
- **Bench:** V.M. Sahai, Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-kumar-singh-v-state-of-u-p-and-others-40520
- **Pages:** 21

## Headnote

Constitution of India, Article 226-Service
Law-Right
to
appointment-petitioner
being placed at serial no. 2 in the waiting
list for the post of U.P. State Universities
(Centralized) Services Asstt. Registrar
Examination 1996-On the ground that
two candidates of general Category had
resigned within the period of one year
from the date of joining and the top most
candidate of waiting list refused to joinstate government send requisition vide
its
letter
dt.
26.7.01-The
Secretary
Higher Education Commission by its
letter dt. 20.08.01 refused on the pertext
in view of Para 3 of G.O. dt. 23.12.97-the
vacancy arising out due to resignation of
selected candidate after the joining-can
not be filled from the waiting list-heldafter joining of selected candidates such
vacancies stood exhausted-being fresh
vacancies to be carried forward for the
next
selection-No
right
to
claim
appointment subsists.

Held: Para 19,20 and 26

But if all the selected candidates who
had been offered appointment against
the vacancies included in the process of
process of selection join the post to fill
up
such
vacancies
though
shortly
thereafter any or some of the candidates
resign from the post even if during life
time or subsistence of select/waiting
list, such vacancies stood exhausted on
account of such joining of selected
candidates and cannot be filled up either
from the remaining candidates of select
list who ranked lower in order of merit or
from the waiting list despite their being
included in select/waiting list and life of
select/waiting list still subsists. Such
vacancies in our considered opinion
would be fresh vacancies and to be
carried forward for the next selection. It
is also because of the another valid
reason that the vacancies arising out of
resignation of selected candidate in a
particular selection after joining the post
can neither be said to be existing
vacancy for the purpose of the aforesaid
selection nor it can be said to be
anticipated
vacancy
likely
to
occur
within stipulated period of time as
provided under the Rules of Recruitment
as nobody can anticipate resignation of
an incumbent like other contingencies of
similar nature such as death, compulsory
retirement,
voluntary
retirement,
dismissal
and
removal
etc.
of
any
incumbent. Therefore, we are of the
considered opinion that the vacancies
arising on this ground i.e. on resignation
of selected candidate after his joining
cannot be filled up from the candidates
included in the select list or waiting list
even though it has occurred during life
time of such select/waiting list or
select/waiting list is still operating.

At this juncture we would also like to
make it clear that only those vacancies
could be included in the process of
selection which were either existing at
the time of initiation of process of
selection or could be anticipated to be
occurred
during
selection
year
as
provided
under
particular
rules
of
recruitment. Since no other vacancies
could
be
anticipated
except
the
vacancies arising out of superannuation,
therefore, only such vacancies would be
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
676
anticipated vacancies and can be filled
up from the select list during the life
time
of
select
list
provided
such
vacancies were included and advertised
for the purpose of such selection. Thus
the vacancies occurred on account of
death, compulsory retirement, voluntary
retirement, dismissal, removal of any
incumbent during the life time of waiting
list, can not be filled up from such
select/waiting list. In our considered
opinion, as indicated herein before,
similarly the vacancies arising out of
resignation of a selected candidate after
his joining would be a fresh vacancy and
cannot be filled in from the aforesaid
select list, rather to be carried forward
for the fresh process of selection and to
be filled up by affording opportunity to
compete
all
eligible
and
qualified
candidates. This is crux of the matter.

Thus in view of foregoining discuss

## Text

_Characters 0–39,783 of 73,496. This is a partial read: ask again with offset=39783 for what follows._

2 All] Arun Kumar Singh V. State of U.P. and others 675
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2005

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 3447 of 2002

Arun Kumar Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.K. Singh

Counsel for the Respondents:
Sri M.A. Qadeer
Sri B.N. Singh
C.S.C

Constitution of India, Article 226-Service
Law-Right
to
appointment-petitioner
being placed at serial no. 2 in the waiting
list for the post of U.P. State Universities
(Centralized) Services Asstt. Registrar
Examination 1996-On the ground that
two candidates of general Category had
resigned within the period of one year
from the date of joining and the top most
candidate of waiting list refused to joinstate government send requisition vide
its
letter
dt.
26.7.01-The
Secretary
Higher Education Commission by its
letter dt. 20.08.01 refused on the pertext
in view of Para 3 of G.O. dt. 23.12.97-the
vacancy arising out due to resignation of
selected candidate after the joining-can
not be filled from the waiting list-heldafter joining of selected candidates such
vacancies stood exhausted-being fresh
vacancies to be carried forward for the
next
selection-No
right
to
claim
appointment subsists.

Held: Para 19,20 and 26

But if all the selected candidates who
had been offered appointment against
the vacancies included in the process of
process of selection join the post to fill
up
such
vacancies
though
shortly
thereafter any or some of the candidates
resign from the post even if during life
time or subsistence of select/waiting
list, such vacancies stood exhausted on
account of such joining of selected
candidates and cannot be filled up either
from the remaining candidates of select
list who ranked lower in order of merit or
from the waiting list despite their being
included in select/waiting list and life of
select/waiting list still subsists. Such
vacancies in our considered opinion
would be fresh vacancies and to be
carried forward for the next selection. It
is also because of the another valid
reason that the vacancies arising out of
resignation of selected candidate in a
particular selection after joining the post
can neither be said to be existing
vacancy for the purpose of the aforesaid
selection nor it can be said to be
anticipated
vacancy
likely
to
occur
within stipulated period of time as
provided under the Rules of Recruitment
as nobody can anticipate resignation of
an incumbent like other contingencies of
similar nature such as death, compulsory
retirement,
voluntary
retirement,
dismissal
and
removal
etc.
of
any
incumbent. Therefore, we are of the
considered opinion that the vacancies
arising on this ground i.e. on resignation
of selected candidate after his joining
cannot be filled up from the candidates
included in the select list or waiting list
even though it has occurred during life
time of such select/waiting list or
select/waiting list is still operating.

At this juncture we would also like to
make it clear that only those vacancies
could be included in the process of
selection which were either existing at
the time of initiation of process of
selection or could be anticipated to be
occurred
during
selection
year
as
provided
under
particular
rules
of
recruitment. Since no other vacancies
could
be
anticipated
except
the
vacancies arising out of superannuation,
therefore, only such vacancies would be
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
676
anticipated vacancies and can be filled
up from the select list during the life
time
of
select
list
provided
such
vacancies were included and advertised
for the purpose of such selection. Thus
the vacancies occurred on account of
death, compulsory retirement, voluntary
retirement, dismissal, removal of any
incumbent during the life time of waiting
list, can not be filled up from such
select/waiting list. In our considered
opinion, as indicated herein before,
similarly the vacancies arising out of
resignation of a selected candidate after
his joining would be a fresh vacancy and
cannot be filled in from the aforesaid
select list, rather to be carried forward
for the fresh process of selection and to
be filled up by affording opportunity to
compete
all
eligible
and
qualified
candidates. This is crux of the matter.

Thus in view of foregoining discussion
we are of considered opinion that the
impugned action of Commission in not
recommending the name of petitioner
who is wait listed candidate of general
category against said vacancies arose on
account of resignation of two candidates
of general category within one year of
their
joining
during
subsistence
of
waiting list and on account of non
joining of one candidate of schedule
caste in given facts and circumstances of
the case stated herein before is fully
justified and according to law and does
not call for any interference in exercise
of jurisdiction under Article 226 of the
Constitution of India.
Case law discussed:
2001(1) U.P.L.B.E.C.-462
1999 (2) AWC-1230
AIR 1991 SC-1612
1974 (1) SCR 1645=AIR 1973 SC-2216
(1986) 4 SCC-268=AIR 1987 SC-169
(1985) 1 SCR 899=AIR 1984 SC-1850
1994 Supp. (2) SCC-591
(1996) 4 SCC 319
(1984) 1 SCR C.P.C N)?
AIR 1987 SC-454
(1989) 4 SC-130
1986 (4) SCC-268
1993 Supp. (4) SCC 377
1994 (1) SCC-126
1994 Supp. (2) SCC-591
AIR 1994 SC-765
AIR 1995 SC-1088
1993 (2) SCC-573
AIR 2001 SC-3757
J.T. 1997 (7) SC-537
1997 (4) SCC-283
1999 (3) SCC-696
2000 (1) SCC-600
1998 (8) SCC-59

(Delivered by Hon'ble V.M. Sahai, J.)

The petitioner has filed this writ
petition seeking a direction in the nature
of a writ of mandamus directing the
respondent
no.4
Public
Service
Commission, Uttar Pradesh, Allahabad,
(hereinafter referred to as Commission) to
send the name of the petitioner from the
waiting list of U.P. State Universities
(Centralised) Services Assistant Registrar
Examination year 1996, in pursuance of
requisition sent by the State Government
vide its letter dated 26.7.2001 and further
a writ in the nature of mandamus was
sought for directing respondents no.2 and
3 to appoint the petitioner forthwith on
the post of Assistant Registrar on the
vacant
post
of
aforesaid
1996
Examination arising out of resignation of
2 candidates of general category within a
period of one year after their joining. The
petitioner has also challenged the letter
dated 20.8.2001 contained in Annexure-9
of the writ petition whereby the Secretary
of the Commission has communicated to
the
Secretary
Higher
Education,
Government
of
Uttar
Pradesh
in
pursuance of his letter dated 26.7.2001
stating therein that in view of para 5 of
the government order dated 31.1.1994, the
period of waiting list has already expired
and in view of para 3 of the government
order dated 23.12.1997 the vacancy
arising out of resignation of selected
2 All] Arun Kumar Singh V. State of U.P. and others 677
candidates after joining even during the
life time of waiting list cannot be filled
from the waiting list.

2. The brief facts having material
bearing to the controversy involved in the
case are that on 5.8.1996 an advertisement
no.A-1/E-1 96-97 was published by the
Commission in daily newspapers for
holding selection against 11 vacancies on
the post of Assistant Registrar in U.P.
State Universities (Centralised) Services.
Out of the aforesaid 11 vacancies, 6
vacancies were earmarked as unreserved
for candidates of general category, 3
vacancies
were
reserved
for
other
backward
class
candidates
and
2
vacancies
were
reserved
for
the
candidates belonging to S.C. & S.T.
Subsequently
thereafter
aforesaid
vacancies were increased from 11 to 19.
The petitioner being fully eligible and
qualified, applied for the selection and
pursuance thereof, he was permitted to
appear in written examination. The
petitioner was declared successful in
written examination and was called for
interview which was held on 29.9.1997.
After the interview, the result of aforesaid
selection was declared on 30.9.1997 in
which total 19 candidates were declared
successful. The name of the petitioner did
not find place in the main select list. But
he was placed at serial no.2 in the waiting
list of the candidates belonging to the
general category. The names of selected
candidates
were
recommended
and
forwarded by the Commission to the State
Government for appointment and the
letters of appointment have been issued to
the selected candidates by the State
Government
on
30.12.1997.
The
petitioner came to know that 2 candidates
of general category, namely Kamlesh
Kumar Shukla and Anand Kumar had
resigned from service within one year of
their
selection
and
appointment
on
5.9.1998 and 2.12.1998 respectively as a
result of which 2 vacancies on the said
post have occurred. Since the aforesaid
vacancies arose out of resignations of
candidates belonging to the general
category, the petitioner, being a general
category candidate at serial no.2 in the
waiting
list,
was
entitled
to
be
recommended by the Commission and the
State
Government
was
under
legal
obligation to ask the Commission to send
the name of the petitioner for appointment
and further to issue letter of appointment
to the petitioner on the basis of his
placement at serial no.2 in the waiting list
amongst the candidates belonging to the
general category. The petitioner moved
several representations to the authorities
concerned for his appointment against one
of the aforesaid two vacancies. It is also
alleged that the person placed at serial
no.1 of the waiting list of general
category, namely Sri Rajiv Kumar did not
make any effort for appointment on the
aforesaid post. In fact it appears that he is
not interested in appointment against the
said
vacancies.
It
appears
that
in
pursuance of such representations made
by
the
petitioner,
the
Secretary
Government of Uttar Pradesh wrote a
letter to the Commission on 26.7.2001 to
send the names from the aforesaid wait
listed candidates which in turn was
replied
by
the
Secretary
of
the
Commission
vide
his
letter
dated
20.8.2001 contained in Annexure-9 to the
writ petition whereby the request made by
the government has been turned down by
the Commission on the grounds stated
herein above, hence this petition.

3. A detailed counter affidavit has
been filed on behalf of the Commission,
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
678
respondent no.4 whereby the stand taken
by it in the impugned order/letter dated
20.8.2001
had
been
reiterated
and
supported by placing justification for not
recommending the name of the petitioner
for appointment against the aforesaid
vacancy.
For
ready
reference
the
averments made in paragraphs 4 and 11 of
the counter affidavit are reproduced
below:

"That the petitioner Sri Arun Kumar
Singh, a general category candidate
having Roll No. 404 appeared at the U.P.
State Universities (Centralised) Services
Assistant Registrar Examination, 1996 but
after interview he was not finally declared
selected.
Subsequently
the
recommendation of the finally selected
candidates for the 19 posts of Assistant
Registrar was sent to the govt. vide letter
no. 101/2/Misc./E-1/94-95 dated 20th
November, 1997 for further action. Then
after the expiry of about four years since
the aforesaid recommendation was sent,
the Commission received the proposal
from the govt. vide letter No. Mu. Man.
/645/70-1-2001-35 (6)/1999 dated 28 July
2001 to send recommendation from the
waiting list for three vacant posts of
Assistant Registrar which fell vacant due
to non-joining of one of the S.C.
candidate as well as the resignation
tendered by two candidates from the
general category (General merit list).
Through this letter the Commission was
intimated that one Sri Mool Chandra, an
S.C. category candidate who was placed
at serial no.17 of the recommendation, did
not join his post, hence his candidature
was rejected. In the same way two
candidates who were placed at serial no.1
a& 2 Sri Anand Kumar (O.B.C.) and Sri
Kamlesh Kumar (Gen.) who resigned
from their post after joining, resulting 3
posts of Assistant Registrar vacant for
which recommendation was sought by the
govt. mentioning the name of the
petitioner to be sent. Here it is noteworthy
to state that the name from the waiting list
for any examination is recommended to
the
govt.
in
accordance
with
the
provisions provided in the State govt.'s
Office Memo No. 1760-Aa/47-Ka-4-9328-5-1980, dated 31 January, 1994 in
which it is very clearly mentioned in sub
para 5 & 6 that the waiting list would be
valid only for one year and if the waiting
list is not utilised within the stipulated
period of one year, the vacancy would be
forwarded for the next selection year.
Apart from this the sub para 3 of the
Office Memo No. 28-5-60-Ka-4-1997
dated 23 December, 1997 also maintains
that the name from the waiting list cannot
be recommended for the post falling
vacant on account of the resignation
tendered by a candidate even if the
waiting list is being utilised within the
stipulated period of one year. Thus the
said proposal of the govt. dated 28 July,
2001 for sending recommendation from
the waiting list was found to be "time
barred"
and
against
the
provisions
provided in the aforesaid G.O. Thus the
proposal was turned down, and the govt.
was informed about this vide office letter
no. 74(i)/08/C-1/97-98 dated 27 October
2001. Now the petitioner wants the
Commission to act in accordance with the
proposal sent by the government and send
his name from the waiting list. Hence he
has filed the present writ petition which is
devoid of merit and is liable to be
rejected.

(11) That in reply to the contents of paras
18 and 19 of the writ petition, it is
submitted that the name from the waiting
list of any examination is recommended
2 All] Arun Kumar Singh V. State of U.P. and others 679
to the govt. in accordance with the
provisions provided in the state govt.
office memo no. 1760-A/347-Ka-4-93-285-1980 dated 31 January, 1994 in which it
is very clearly mentioned in sub-para 5
and 6 that the waiting list would be valid
only for one year and if the waiting list is
not utilised within the stipulated period of
one year, the vacancy would be carried
forwarded for the next selection year.
Thus in the light of the provision provided
in the said G.O. the proposal of the Govt.
to recommend substitutes name from the
waiting list is "time barred" proposal
because it was sent by the govt. after the
gap of about four years since the
recommendation for the said examination
was sent to the govt. by the commission.
Apart from this the sub-para 3 of the
office memo no. 28/5/80-Ka-4-1997,
dated 23 December, 1997 also provides
that the name from the waiting list cannot
be recommended for the post falling
vacant on account of the resignation
tendered by a candidate even if the
waiting list is being utilised within the
stipulated period of one year. Thus it is
quite obvious that the proposal of the
govt. to send substitutes name from the
waiting list is not at all in keeping with
the rules and provisions provided in the
aforesaid G.O. thus untenable. Hence the
proposal was turned down and the govt.
was informed about this vide letter no.
74(1)/08/C-1/97-98 dated 27 Oct. 2001. A
true copy of the aforesaid G.O. dated 31
January, 1994, Office memo dated 23
Dec. 1997 are being annexed here with as
"Annexure C.A-1 & Annexure C.A.-II" to
this counter affidavit."

4. Since the necessary affidavits
have been exchanged between the parties
and the case is ripe for hearing, it is heard
with the consent of the parties.
5. We have heard Sri Sanjay Kumar
Singh, learned counsel for the petitioner
and learned standing counsel appearing
for respondents no.1 to 3 and Sri M.A.
Qadeer learned counsel appearing for
respondent no.4 and also perused the
record.

6. The thrust of the submission of
learned counsel for the petitioner is that
since the name of the petitioner finds
place at serial no.2 in the waiting list of
candidates belong to general category and
the person placed at serial no.1 in the
waiting list had no interest to join the post
which became vacant on account of
resignation of 2 candidates of general
category within a year after their selection
and appointment, therefore, the petitioner
being empanelled at serial no.2 in the
waiting list is entitled to be recommended
and appointed against one of the vacancy
caused due to resignation of aforesaid two
general category candidates during the
life time of waiting list. The action of the
respondents in not recommending the
name of the petitioner for appointment
against the said vacancy in given facts
and circumstances of the case is wholly
arbitrary,
illegal
and
without
any
justification under law. In support of his
submission the learned counsel for the
petitioner has placed reliance on division
bench decisions of this court rendered in
Ved Prakash Tripathi vs. State of U.P. and
others, (2001) 1 UPLBEC 462 and State
of U.P. and others v. Ravindra Nath Rai
and others 1999 (2) AWC 1230.

7. Contrary to it, Sri M.A. Qadeer,
learned counsel for respondent no.4 has
submitted that the action taken by the
Commission is fully justified in given
facts and circumstances of the case. While
elaborating his submissions Sri Qadeer
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
680
submitted that firstly, life of select
list/waiting list is 1 year from the date of
its preparation and last recommendation
made
by
the
Commission
to
the
government
in
pursuance
of
such
selection and secondly, even if the
vacancy
is
caused
on
account
of
resignation of a selected candidate after
his joining within one year during the life
time of the select list/waiting list, in that
eventuality also the name of wait listed
candidate cannot be recommended against
such vacancy as the select list stood
exhausted on account of joining of the
candidate of the select list against such
vacancy and after his resignation the
vacancy caused is to be carried out for the
next selection and the candidate of the
waiting list cannot be recommended
against such vacancy. In support of his
submissions Sri Qadeer has placed
reliance upon the relevant paragraph of
the government order of the year 1994
and 1997, referred herein before and
averments made in the counter affidavit,
reproduced herein before, filed on behalf
of the Commission.

8. On the basis of rival submissions
and contentions of learned counsel for the
parties a moot question arises for
consideration is as to whether a candidate
empanelled in the select list/waiting list is
entitled for appointment against the
vacancy caused due to resignation of
selected candidates of the aforesaid select
list who joins the post and resigns shortly
thereafter or during life time of the said
select/waiting list?

9. Before dealing with the question
in issue it is necessary to deal with the
relevant aspect of the matter having
material bearing on the issue which has
received consideration of Hon'ble Apex
Court on numerous occasions. In this
regard a reference can be made to a
Constitution Bench decision of the
Hon'ble Supreme Court rendered in
Shankarsan Dash v. Union of India and
others, AIR 1991 SC 1612 wherein the
Hon'ble Apex Court has dealt with the
question of the legal nature of select list,
how can it be utilised and whether a
selected candidate had indefeasible right
of appointment on account of being
empanelled in the select list? For ready
reference para 7 of the aforesaid decision
reproduced as under:

"It is not correct to say that if a
number of vacancies are notified for
appointment and adequate number of
candidates are found fit, the successful
candidates acquire an indefeasible right to
be appointed which cannot be legitimately
denied. Ordinarily, the 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. Unless the relevant
recruitment rules so indicate, the State is
under no legal duty to fill up all or any of
the vacancies. However, it does not mean
that the State has the licence of acting in
an arbitrary manner. And if the vacancies
or any of them are filled up, the State is
bound to respect the comparative merit of
the candidates, as reflected at the
recruitment test, and no discrimination
can be permitted. This correct position
has been consistently followed by this
Court, and we do not find any discordant
note in the decisions in State of Haryana
v. Subhash Chander Marwaha, (1974) 1
SCR 1645: (AIR 1973 SC 2216), Miss
Neelima Shangla v. State of Haryana,
(1986) 4 SCC 268: (AIR 1987 SC 169),
or Jitendra Kumar v. State of Punjab,
(1985) 1 SCR 899: (AIR 1984 SC 1850)"
2 All] Arun Kumar Singh V. State of U.P. and others 681
10. In Gujrat State Dy. Executive
Engineers' Association v. State of Gujrat
and others, 1994 Supp (2) SCC 591, the
Hon'ble Apex Court has considered the
questions 'what is waiting list? can it be
treated as a source of recruitment from
which a candidate may be drawn as and
when necessary and how long can it
operate?' The relevant portion of paras 8
and 9, of the decision are being
reproduced as under:

"8. Coming to the next issue, the
first question is what is a waiting list? can
it be treated as a source of recruitment
from which candidates may be drawn as
and when necessary? and lastly how long
can it operate? These are some important
questions which do arise as a result of
direction issued by the High Court. A
waiting list prepared in service matters by
the competent authority is a list of eligible
and qualified candidates who in order of
merit are placed below the last selected
candidate. How it should operate and
what is its nature may be governed by the
rules. Usually it is linked with the
selection or examination for which it is
prepared. For instance, if an examination
is held say for selecting 10 candidates for
1990
and
the
competent
authority
prepares a waiting list then it is in respect
of those 10 seats only for which selection
or competition was held. Reason for it is
that whenever selection is held, except
where it is for single post, it is normally
held by taking into account not only the
number of vacancies existing on the date
when
advertisement
is
issued
or
applications are invited but even those
which are likely to arise in future within
one year or so due to retirement etc. It is
more so where selections are held
regularly by the Commission. Such lists
are prepared either under the rules or even
otherwise mainly to ensure that the
working in the office does not suffer if the
selected candidates do not join for one or
the other reason or the next selection or
examination is not held soon. A candidate
in the waiting list in the order of merit has
a right to claim that he may be appointed
if one or the other selected candidate does
not join."

9.
A waiting list prepared in an
examination
conducted
by
the
Commission does not furnish a source of
recruitment. It is operative only for the
contingency that if any of the selected
candidates does not join then the person
from the waiting list may be pushed up
and be appointed in the vacancy so caused
or if there is some extreme exigency the
Government may as a matter of policy
decision pick up persons in order of merit
from the waiting list. But the view taken
by the High Court that since the vacancies
have not been worked out properly,
therefore, the candidates from the waiting
list were liable to be appointed does not
appear to be sound. This practice, may
result in depriving those candidates who
become eligible for competing for the
vacancies available in future. If the
waiting list in one examination was to
operate
as
an
infinite
stock
for
appointments, there is a danger that the
State Government may resort to the
device of not holding an examination for
years together and pick up candidates
from the waiting list as and when
required. The constitutional discipline
requires that this Court should not permit
such improper exercise of power which
may result in creating a vested interest
and perpetrate waiting list for the
candidates of one examination at the cost
of entire set of fresh candidates either
from the open or even from service."
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
682
11. In Prem Singh and others v.
Haryana State Electricity Board and
others, (1996) 4 SCC 319 the questions
for consideration before the Hon'ble Apex
Court was as to whether the appointment
from the select list/waiting list can be
limited only to the extent of vacancies
advertised or it can be extended for future
vacancies also? In this case while taking
note of the earlier decisions rendered by it
and High Courts the Hon'ble Apex court
has dealt with the issue in some detail in
paras 15 to 25 of the decision. It would be
useful to refer to some paragraphs of the
decision as under:

"15. In Subhash Chander Sharma v.
State of Haryana, (1984) 1 SLR (P & H)
the facts were that as against 60
advertised posts the Public Service
Commission had recommended almost
double the number and more than 60
candidates were appointed on the basis of
that selection. Relying upon the earlier
decision of the same High Court in
Sachida Nand Sharma v. Subordinate
Services Selection Board decided on 1-61983
it
was
contended
that
all
appointments beyond 60 should be
invalidated. The High Court distinguished
its earlier decision in Sachida Nand
Sharma Case and held that if the State
adopted a pragmatic approach by taking
into consideration the existing vacancies
in relation to the process of selection
which sometimes takes a couple of years
and made appointments in excess of the
posts advertised then such an action
cannot be regarded as unconstitutional.

16. In Ashok Kumar Yadav v. State of
Haryana, AIR 1987 SC 454 what had
happened
was that Haryana
Public
Service
Commission
had
invited
applications for recruitment to 61 posts in
Haryana Civil Service and other allied
services. The number of vacancies rose
during the time taken up in the written
examination and the viva voce test and
thus in all 119 posts became available for
being filled. The Haryana Public Service
Commission,
therefore,
selected
and
recommended 119 candidates to the
Government. Writ petitions were filed in
the High Court of Punjab and Haryana
challenging the validity of the selections
on various grounds. The High Court set
aside the selection as it was of the view
that the selection process was vitiated for
more than one reason. On appeal, this
Court also found substance in the
contention that the Haryana Public
Service Commission was not justified in
calling
for
interview
candidates
representing more than 20 times the
number of available vacancies and that
the percentage of marks allocated for the
viva voce test was unduly excessive. Yet
this Court did not think it just and proper
to set aside the selections made by the
Haryana Public Service Commission as
by that time two years had passed and the
candidates
selected
were
already
appointed to various posts and were
working on those posts since about two
years.

17. In A.V. Bhogeshwarudu v. A.P.
Public Service Commission, J.T. (1989) 4
Sc 130, the process of selection had
started in 1983 and was completed in
1987. The vacancies that arose in between
were also sought to be accommodated
from the recruitment list prepared by the
State Public Service Commission. The
point which arose for consideration was if
out of the names recommended for
appointments some candidates did not
join, whether the vacancies remaining
unfilled can be filled from out of the
2 All] Arun Kumar Singh V. State of U.P. and others 683
remaining successful candidates. This
Court held that there was no justification
in insisting that instead of filling up the
vacancies by recommended candidates a
fresh selection list should be made. This
decision is, therefore, not relevant for the
purpose of this appeal. So also, the cases
of Neelima Shangla v. State of Haryana
(1986) 4 SCC 268 and Shankarsan Dash
v. Union of India (supra) cited by the
learned counsel for the appellants are of
no help as the point involved in those
cases was altogether different.

18. In Hoshiar Singh v. State of Haryana,
1993 Supp (4) SCC 377, a requisition was
sent to select candidates for appointment
on 6 posts of Inspectors of Police by
advertisement
dated
22-1-1988.
Applications were invited for the said 6
posts.
Subsequent
to
the
written
examination but prior to the physical test
and interview a revised request for 18
persons
was
sent.
The
Board
recommended 19 names out of which 18
persons were given appointments. Those
appointments were challenged before the
Punjab and Haryana High Court and it
was held that appointments beyond 8
posts were illegal. On appeal this Court
held that since requisition was for 8 posts,
the Board was required to send its
recommendation for 8 posts only. This
Court further observed: (SCC p. 384, para
10)

"The appointment on the additional
posts on the basis of such selection and
recommendation
would
deprive
candidates who were not eligible for
appointment to the posts on the last date
for submission of applications mentioned
in the advertisement and who became
eligible for appointment thereafter, of the
opportunity of being considered for
appointment on the additional posts
because if the said additional posts are
advertised
subsequently
those
who
become eligible for appointment would be
entitled to apply for the same. The High
Court was, therefore, right in holding that
the selection of 19 persons by the Board
even though the requisition was for 8
posts only, was not legally sustainable."

19. In the case of State of Bihar v.
Secretariat Asstt. Successful Examinees'
Union 1986, (1994) 1 SCC 126 the Bihar
State Subordinate Services Selection
Board had issued an advertisement in the
year 1985 inviting applications for the
posts of Assistants falling vacant up to the
year 1985-86. The number of vacancies as
then existing was announced on 25-81987, the examination was held in
November 1987 and the result was
published only in July 1990. Immediately
thereafter out of successful candidates
309 candidates were given appointments
and the rest empanelled and made to wait
for release of further vacancies. Since the
vacancies available uptil 31.12.1988 were
not disclosed or communicated to the
Board no further appointment could be
made. The empanelled candidates, after
making an unsuccessful representation to
the State Government approached the
Patna High Court which directed them to
be appointed in vacancies available on the
date of publication of the result as well as
the vacancies available which had arisen
up to 1991. The State appealed against
that decision and this 'Court held that the
direction given by the High Court for
appointment of empanelled candidates
according to the merit list against the
vacancies till 1991 was not proper and
cannot be sustained. This Court further
observed that since no examination was
held since 1987 persons who became
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
684
eligible to compete for appointments were
denied the opportunity to take the
examination and the direction of the High
Court would prejudicially affect them for
no fault of theirs. However, keeping in
view the fact situation of the case this
Court upheld the appointments made on
the posts falling vacant up to 1988 and
quashed the judgment of the High Court
which directed the filling up of the
vacancies of 1989, 1990 and 1991 from
out of the list of the candidates who had
appeared in the examination held in 1987.

25. From the above discussion of the
case-law it becomes clear that the
selection process by way of requisition
and advertisement can be started for clear
vacancies
and
also
for
anticipated
vacancies but not for future vacancies. If
the requisition and advertisement are for a
certain number of posts only the State
cannot make more appointments than the
number of posts advertised, even though
it might have prepared a select list of
more candidates. 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. Even when filling up of more
posts than advertised is challenged the
court may not, while exercising its
extraordinary jurisdiction, invalidate the
excess appointments and may mould the
relief in such a manner as to strike a just
balance between the interest of the State
and the interest of persons seeking public
employment. What relief should be
granted in such cases would depend upon
the facts and circumstances of each case."

12. The aforesaid view taken by the
Hon'ble Apex Court in Prem Singh and
others v. Haryana State Electricity Board
and others,(supra) and Gujrat State Dy.
Executive Engineers' Association v. State
of Gujrat and others (supra) has been
reiterated again by the Apex Court in
Surinder Singh and others v. State of
Punjab and others, AIR 1998 SC 18. In
paras 14 and 15 of this decision the Apex
Court has held as under:

"14. Prem Singh case (1996) 4 SCC
319, was decided on the facts of that case
and those facts do not hold good in the
present case. In the case of Gujrat State
Dy. Executive Engineers' Association,
1994 Supp (2) SCC 591 this Court has
explained the scope and intent of a
waiting list and how it is to operate in
service jurisprudence. It cannot be used as
a perennial source of recruitment filling
up the vacancies not advertised. The
Court also did not approve the view of the
High Court that since vacancies had not
been worked out properly, therefore, the
candidates from the waiting list were
liable to be appointed. Candidates in the
waiting list have no vested right to be
appointed except to the limited extent that
when a candidate selected against the
existing vacancy does not join for some
reason and the waiting list is still
operative.

15. It is no uncertain words that this
Court has held that it would be improper
exercise of power to make appointments
over and above those advertised. It is only
in rare and exceptional circumstances and
in emergent situation that this rule can be
deviated from. It should be clearly spelled
out as to under what policy such a
decision has been taken. Exercise of such
power has to be tested on the touch stone
of
reasonableness.
Before
any
advertisement
is
issued;
it
would,
2 All] Arun Kumar Singh V. State of U.P. and others 685
therefore
be
incumbent
upon
the
authorities to take into account the
existing
vacancies
and
anticipated
vacancies. It is not as a matter of course
that the authority can fill up more posts
than advertised."

13. In State of Bihar and another v.
Madan Mohan Singh and others, AIR
1994 SC 765, Hon'ble Supreme Court
after taking note of earlier decisions has
held that a particular selection is meant
for filling of vacancies advertised in that
selection from the candidates selected and
the select list would be well and good for
the purpose of filling only those vacancies
for which the selection has been made.
The select list would be exhausted if the
vacancies have been filled by the selected
candidates irrespective of the fact that
certain other persons left out and could
not
get
appointment
against
such
vacancies who ranks lower in merit of
such selection. For ready reference
relevant portion of para 7 of the aforesaid
decision is reproduced as under:

"It is therefore crystal clear that the
advertisement and the whole selection
process that ensued were meant only to
fill up 32 vacancies. Learned counsel for
the respondents relying on the decisions
of this Court in Kailash Chandra Sharma
v. State of Haryana, 1989 Suppl (2) SCC
696: (AIR 1990 SC 454) and O.P. Garg v.
State of U.P. AIR 1991 SC 1202,
contended that when there are temporary
vacancies, the direct recruits should have
their share of quota in respect of
temporary vacancies also. As noted
above, the temporary vacancies arose
subsequently but even otherwise in the
view we are taking namely that the
particular
advertisement
and
the
consequent selection process were meant
only to fill up 32 vacancies and not to fill
up the other vacancies, the merit list
prepared on the basis of the written test as
well as the viva voce will hold good only
for the purpose of filling up those 32
vacancies and no further because the said
process
of
selection
for
those
32
vacancies got exhausted and came to an
end. If the same list has to be kept
subsisting for the purpose of filling up
other vacancies also that would naturally
amount to deprivation of rights of other
candidates who would have became
eligible
subsequent
to
the
said
advertisement and selection process."

14. In Madan Lal v. State of J.& K,
AIR 1995 SC 1088 the Hon'ble Apex
Court has followed the decision rendered
earlier in State of Bihar and Another v.
Madan Mohan Singh and others (supra)
and in paragraph 23 of the decision held
as under:

"23.It is now time to refer to rule 41
as pointed out by the learned counsel for
the petitioners. The said rule reads as
under:-

"Security of the list.-The list and the
waiting list of period of one year from the
date of its publication the selected
candidates shall remain in operation for a
in the Government Gazette or till it is
exhausted
by
appointment
of
the
candidates whichever is earlier, provided
that nothing in this rule shall apply to the
list and the waiting list prepared as a
result of the examination held in 1981
which will remain in operation till the list
or the waiting fist is exhausted.

A mere look at the rule shows that
pursuant
to
the
requisition
to
be
forwarded
by
Government
to
the
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
686
Commission for initiating the recruitment
process, if the Commission has prepared
merit list and waiting list of selected
candidates such list will have a life of one
year from the date of publication in
Government Gazette or till it is exhausted
by
the
appointment
of
candidates,
whichever is earlier. This means that if
requisition is for filling up of 11
vacancies and it does not include any
anticipated vacancies, the recruitment to
be initiated by the Commission could be
for selecting 11 suitable candidates. 'The
Commission may by abundant caution
prepare a merit list of 20 or even 30
candidates as per their inter se ranking on
merits. But such a merit list will have a
maximum life of one year from the date
of publication or till all the required
appointments are made whichever even
happened earlier. It means that if
requisition for recruitment is for 11
vacancies and the merit list prepared is for
20 candidates, the moment 11 vacancies
are filled in from the merit list the same
gets exhausted, or if during the span of
one year from the date of publication of
such list all the 11 vacancies are not filled
in, the moment the year is over the list
gets exhausted. In either event, thereafter,
if further vacancies are to be filled in or
remaining vacancies are to be filled in,
after one year, a fresh process of
recruitment is to be initiated giving a
fresh opportunity to all the open market
candidates to compete. This is the thrust
of rule 41. It is in consonance with the
settled legal position as we will presently
see.