# Vimlesh Kumar Sharma v. Central Administrative Tribunal Circuit Bench Lko &Ors

- **Citation:** (2019) 1 ILRA 857
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-03
- **Case number:** Service Bench No. 22973 of 2016
- **Bench:** Anil Kumar, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vimlesh-kumar-sharma-v-central-administrative-tribunal-circuit-bench-lko-ors-44487
- **Pages:** 11

## Headnote

Anurag Srivastava

A. Validity of Select List - only six
months.
Thereafter,
it
was
not
considered for providing appointment.
Prior to the period of validity of the
select list, neither it was acted upon nor
it was approved by the competent
authority A candidate whose name finds
place in the select list has no legal right
to get appointment.

B. Post of Store-Keeper, against which
the selection process was initiated and
the petitioner was declared successful, is
not vacant.

As the validity of the list was only for six
months and after lapse of six months, the
same was not considered for providing
appointment to the petitioner-Different select
lists and therefore the claim of the petitioner
on the ground of parity is unsustainable- Prior
to the period of validity of the select list, in
issue, was neither acted upon nor it was
approved by the competent authority-Post of
Store-Keeper, against which the selection
process was initiated and the petitioner was
declared successful, is not vacant- A candidate
whose name finds place in the select list has
no legal right to get appointment.
858 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ Petition dismissed.

Case Law Relied Upon/Discussed: -

## Text

1 All. Vimlesh Kumar Sharma Vs. Central Administrative Tribunal Circuit Bench Lko & Ors. 857
One needs to keep in mind that in the
process of litigation, there is an
innocent sufferer on the other side of
every
irresponsible
and
senseless
claim. He suffers long-drawn anxious
periods
of
nervousness
and
restlessness, whilst the litigation is
pending without any fault on his part.
He pays for the litigation from out of
his savings (or out of his borrowings)
worrying that the other side may trick
him into defeat for no fault of his. He
spends
invaluable
time
briefing
counsel and preparing them for his
claim. Time which he should have
spent at work, or with his family, is
lost, for no fault of his. Should a
litigant not be compensated for what
he
has
lost
for
no
fault?
The
suggestion to the legislature is that a
litigant who has succeeded must be
compensated by the one who has lost.
The suggestion to the legislature is to
formulate a mechanism that anyone
who
initiates
and
continues
a
litigation senselessly pays for the
same.
It
is
suggested
that
the
legislature
should
consider
the
introduction of a "Code of Compulsory
Costs"."

21.

Accordingly,
taking
into
consideration the law laid down by the
Hon'ble Supreme Court in the case of
Subrata Roy Sahara (supra) this Court
imposes cost of Rs. 50,000/- on the State
to be paid to the petitioner within a period
of four weeks from the date of receipt of a
certified copy of this order. It would be
open for the State to recover the said cost
from the officials who were lax and
whose action has resulted in such
avoidable litigation causing repeated
harassment to the petitioner.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.09.2019

BEFORE
THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Service Bench No. 22973 of 2016

Vimlesh Kumar Sharma ...Petitioner
Versus
Central Administrative Tribunal Circuit
Bench Lko &Ors. ...Respondents

Counsel for the Petitioner:
Mohammad Babar Khan

Counsel for the Respondents:
Anurag Srivastava

A. Validity of Select List - only six
months.
Thereafter,
it
was
not
considered for providing appointment.
Prior to the period of validity of the
select list, neither it was acted upon nor
it was approved by the competent
authority A candidate whose name finds
place in the select list has no legal right
to get appointment.

B. Post of Store-Keeper, against which
the selection process was initiated and
the petitioner was declared successful, is
not vacant.

As the validity of the list was only for six
months and after lapse of six months, the
same was not considered for providing
appointment to the petitioner-Different select
lists and therefore the claim of the petitioner
on the ground of parity is unsustainable- Prior
to the period of validity of the select list, in
issue, was neither acted upon nor it was
approved by the competent authority-Post of
Store-Keeper, against which the selection
process was initiated and the petitioner was
declared successful, is not vacant- A candidate
whose name finds place in the select list has
no legal right to get appointment.
858 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ Petition dismissed.

Case Law Relied Upon/Discussed: -
1. S.S. Balu and another v. State of Kerala and
others, (2009) 2 SCC 479

2. All India SC/ST Employees Association v. A.
Arthur Jeen and others, 2001 (6) SCC 380

3. State of Haryana v. Subash Chander
Marwaha, (1974) 3 SCC 220

4. Shankarsan Dash v. Union of India, (1991)
3 SCC 47

5. Punjab State Electricity Board and Others v.
Malkiat Singh, (2005) 9 SCC 22

6. Rakhi Ray v. High Court of Delhi, (2010) 2
SCC 637

7. U.P. Public Service Commission, Allahabad
and another Vs. State of U.P. and another,
2007(5) ADJ 280 (DB)

8.Vijay Singh Charak v. Union of India (2007)
2 SCC (L&S) 721 (E-3)

 (Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Sri Mohammad Babar
Khan, learned counsel for the petitioner
and Sri Anurag Srivastava, learned
counsel for the respondents.

2. Under challenge is the order dated
11.04.2016
passed
by
the
Central
Administrative Tribunal (in short "CAT")
in Original Application No. 427 of 2012
(in short "OA") filed by the petitioner for
the following main reliefs:-

"(i) Issue a writ, order or direction in
the nature of certiorari quashing the
impugned order and judgment dated
11.04.2016 passed by the learned Central
Administrative Tribunal (opposite party
No. 1) in Original Application No.
427/2012, as contained in Annexure No. 1
to the writ petition.

(ii) Issue a writ, order or direction in
the nature of mandamus commanding the
opposite parties No. 2 to 4 to appoint the
petitioner on the post of Store-Keeper in
Jawahar
Navodaya
Vidyalaya
Itara
Pihani District Hardoi on the basis of
select list prepared on 24.02.2009,
forthwith.

(iii) Issue any other order or
direction which this Hon;ble Court may
deem
just
and
proper
under
the
circumstances of the case.

(iv) Award the costs of the writ
petition in favour of the petitioner."

3. The facts, in brief, of the present
case are that for filling the post of
Chaukidar,
Chaukidar-cum-Sweeper,
Electrician-cum-Plumber
and
Store
Keeper, lying vacant, in the Jawahar
Navodaya
Vidyalaya,
Itara
Pihani,
Hardoi, the name of eligible candidates
were
sought
from
the
employment
exchange. Vide letter dated 30.04.2008,
the employment exchange sent the list of
eligible candidates for the post of Store
Keeper (Annexure No. 2 to the writ
petition).

4. It appears that for other posts, the
lists were also sent by the employment
exchange. On the basis of the list
forwarded by the employment exchange,
the Selection Committee was constituted
and eligible candidates were required to
undergo Trade Test (Typing Test) held on
24.02.2009.

5. In the Typing Test, the petitioner
was declared successful. The Typing Test
was
also
held
for
the
post
of
Electrician/Plumber on 24.02.2009 and in
1 All. Vimlesh Kumar Sharma Vs. Central Administrative Tribunal Circuit Bench Lko & Ors. 859
the said test, one Sri Faheem Siddiqui was
declared successful. On being declared
successful, appointment was provided to
Sri Faheem Siddiqui on 09.07.2009 on the
post
of
Electrician/Plumber.
The
appointment to the petitioner was not
provided on the post of Store-Keeper for
which he appeared in the Typing Test and
was declared successful on 24.02.2009.

6. It is pertinent to point out that
the eligibility list dated 30.04.2008,
which was provided to the employer
by the employment exchange, for the
post of Store-Keeper, the name of the
petitioner find place at Serial No. 3
but the name of Sri Faheem Siddiqui
does not find place in the aforesaid list
for the reason that the posts on which
Sri Faheem Siddiqui was provided
appointment
is
the
post
of
Electrician/Plumber and a separate list
of eligible candidates for the post of
Electrician/Plumber was provided by
the employment exchange to the
employer.

7. The petitioner being aggrieved by
denial
of
appointment,
sought
the
information through the RTI Act, 2005
vide application dated 14.07.2009.

8. In response to the same, the
employer provided the reply disclosing
the reasons for not giving the appointment
to the petitioner on the post of StoreKeeper. The reasons indicated in the reply
dated 11.08.2009 reads as under:-

"भजलम सेिमयोजन कमयमालय से अभ्यभथायों की जो सूभि प्रमप्त
हुयी थी उन्ही अभ्यभथायों कम भिनमांक24.02.09 को ट्रेड टेस्ट करमयम
गयम | िूाँभक प्रमप्त सूभि की िैितम ममत्रम छः ममह ममनी गयी इसभलए सक्षम
अभिकमरीद्वमरम सम्बांभित सूभि पर भिनमांक 24.02.09 को करमयी गयी
टांकणपरीक्षम को िैि नहीं ममनम गयम इसभलए ियन कम अनुमोिन नहीं
भकयम गयम|"

9. The above quoted reasons
mentioned in reply dated 11.08.2009 are
based on letter of employment exchange
dated 17.01.2009, according to which the
list of eligible candidates provided by the
employment exchange was valid only for
six months.

10. In the counter reply filed before
the CAT in response to OA, the opposite
parties took the main pleas to the effect
that:-

(i) list of eligible candidates provided
by the employment exchange expired
after lapse of six months, accordingly, the
same was not acted upon,

(ii) that mere appearance in the
competitive examination and even being
declared successful therein does not
entitle the applicant/petitioner to get
appointment
on
the
post
rather
a
candidate, who applies for the post
concerned, has a right to be considered for
appointment on the post concerned and
which,
in
the
present
case,
the
applicant/petitioner has availed, and

(iii) even in pursuance to the
selection for the post of Store-Keeper, no
such, appointment has even been made by
the opposite parties and the post in
question at Jawahar Navodaya Vidylaya,
Hardoi has been filled up by transfer of
opposite party no. 4.

11. In aforesaid factual background,
the petitioner has filed the OA before the
Tribunal
for
the
reliefs
quoted
hereinabove.

12. The Tribunal, after considering
the facts of the case and relying upon the
judgment of the Hon'ble Apex Court
860 INDIAN LAW REPORTS ALLAHABAD SERIES
passed in the cases of S.S. Balu and
another v. State of Kerala and others
reported in (2009) 2 SCC 479 and All
India SC/ST Employees Association v. A.
Arthur Jeen and others reported in 2001
(6) SCC 380, dismissed the OA.

13. In the case of S.S. Balu (supra),
the Hon'ble Apex Court observed as
under:-

"A person does not acquire a
legal right to be appointed only
because his name appears in the
select list. The State as an employer
has a right to fill up all the posts or
not to fill them up. Unless a
discrimination is made in regard to
filling
up
of
vacancies
or
arbitrariness
is
committed,
the
candidate concerned will have no
legal right for obtaining a writ of
mandamus. Even selected candidate
do not have legal right in this
behalf."

14. In the case of All India SC/ST
Employees
Association
(supra),
the
Hon'ble Apex Court observed as under:-

"Inclusion of a candidate in the
panel only indicates his provisional
selection and he does not acquire any
indefeasible right for appointment even
on existing vacancy."

15. The Tribunal, while dismissing
the OA, has also taken note of the fact
that on the post, in issue, for which the
type test was held, one person, who was
earlier working in Itawah was posted at
Hardoi vide letter dated 16.11.2010. The
Tribunal has also taken note of the fact,
while dismissing the OA, that the validity
of the list was only for six months and
after lapse of six months, the same was not
considered for providing appointment to the
petitioner.

16. Assailing the impugned order
dated 11.04.2016 passed by the Tribunal
in the OA No. 427/2012 filed by the
petitioner, the counsel for the petitioner
submits that the petitioner as well as Sri
Faheem Siddiqui were duly selected in the
type test held on 24.02.2009 and the
appointment to Sri Faheem Siddiqui was
provided
by
the
employer-opposite
parties-Navodaya
Vidalaya
and
the
appointment was not given to the
petitioner and this act of the employer is
arbitrary, unjust and iniquitous.

17. Learned counsel for the
petitioner has further submitted that in the
case of Sri Faheem Siddiqui, the select list
was acted upon and in the case of the
petitioner, the appointment has been
denied on the ground that the list has
expired
and
thus,
denial
of
the
appointment to the petitioner by the
opposite parties is arbitrary and illegal
and liable to be interfered by this Court.

18. It has also been submitted by the
learned counsel for the petitioner that the
Tribunal without appreciating the facts of
the case in its true spirit, dismissed the
OA and while doing so, relied upon the
judgments of the Hon'ble Apex Court,
which in the facts of the case are not
applicable.

19. Per contra, learned counsel for
the
respondents
submitted
that
the
petitioner was declared successful in the
type test held on 24.02.2009 for the post
of Store-Keeper for which the list of
eligible candidates was sent by the
employment exchange on 30.04.2008 in
1 All. Vimlesh Kumar Sharma Vs. Central Administrative Tribunal Circuit Bench Lko & Ors. 861
which the name of Sri Faheem Siddiqui
does not find place and Sri Faheem
Siddiqui was declared successful in the
type test held for the post of Eletriciancum-Plumber
for
which
separate
eligibility list was sent by the employment
exchange.
Thus, the claim of the
petitioner based on parity is unsustainable
in the eye of law.

20. Learned counsel for the
respondents further submitted that prior to
approval of the select list with regard to
the post of Store-Keeper, the validity of
the list expired and on account of this
reason, the approval for appointment was
not made by the competent authority and
in view thereof, the appointment was not
given to the petitioner.

21. Learned counsel for the
respondents further submitted that on
account of transfer of Sri A. Singh from
Itawah to Hardoi, the post, in issue i.e. the
post of Store-Keeper, against which the
selection, in issue, was held, is not vacant
and accordingly, the petitioner cannot be
appointed against the said post.

22. We have considered the
submissions advanced by the learned
counsel for the parties and gone through
the record.

23. We find from the record that the
eligibility list for the post of Store-Keeper
was sent by the employment exchange to
the employer for the post of Store-Keeper
wherein, the name of the petitioner find
place at Serial No. 3 and in the said list,
the name of Sri Faheem Siddiqui does not
find place.

24. It is also evident from the select
list dated 25.02.2009 (Annexure No. 2 to
the writ petition) that in the said select
list, the name of the petitioner finds place
at Serial No. 3 and in the said select list,
the name of Sri Faheem Siddiqui, who
was appointed on the post of Electriciancum-Plumber does not find place.

25. In view of the above facts, it is
crystal clear that the select list, which was
acted upon by the employer for providing
the appointment to Sri Faheem Siddiqui,
is a different select list and accordingly,
we are of the view that the claim of the
petitioner on the ground of parity is
unsustainable.

26. It is admitted fact that the
validity of the period of list was six
months and prior to the period of validity
of the list, the select list, in issue, was
neither acted upon nor it was approved by
the competent authority.

27. It is also evident from the record
that the post of the Store-Keeper, against
which the selection process was initiated
and
the
petitioner
was
declared
successful, is not vacant on account of the
joining of Sri A Singh on the said post.

28. The judgment relied upon by the
petitioner of the Apex Court in the case of
Purushottam v. Chairman, M.S.E.B. and
another reported in (1999) 6 SCC 49 is
not applicable as in the said case, the
appointment was denied on the basis of
the decision of the Screening Committee,
which was reversed by the High Court.

29. In the instant case, the select list
dated 25.02.2009, for the post of StoreKeeper, was not acted upon during the
period of validity of the list provided by
the employment exchange, which was of
six months.
862 INDIAN LAW REPORTS ALLAHABAD SERIES

30. The judgment of the Apex Court
in the case of R.S. Mittal v. Union of
India reported in 1995 Supp (2) SCC 230
relied upon by the learned counsel for the
petitioner is also not applicable in the
facts of the present case, in which the
validity of the list was for the period of the
six months and after the period of validity of
the list, no appointment can be made, as per
the law laid down by the Apex Court in
various pronouncements. In the case of R.S.
Mittal (supra) also the Apex Court only
awarded the compensation and not provided
the appointment to the appellant therein on
account of the period of validity of the select
list/panel.

31. In view of the above, the
judgment of the Apex Court in the case of
R.S. Mittal (supra) would not in any way
help the petitioner.

32. The judgment passed by the
Apex Court in the case of Santosh Kumar
and others v. G.R. Chawla and others
reported in (2003) 10 SCC 513 relied
upon by the learned counsel for the
petitioner in support of his claim is not
applicable as in the said case, the select
list was acted upon and the appellant
therein was not appointed.

33. In the instant case, the select list for
the post of Store-Keeper (Annexure No. 3 to
the writ petition) was not acted upon and
separate select list for the post of Eletriciancum-Plumber was acted upon.

34. The aforesaid judgment is also not
applicable in the case of the petitioner
because, in the aforesaid judgment, the
recruitment process was canceled and the
Hon'ble Apex Court after considering the
facts of the case, came to the conclusion that
the recruitment process was canceled in an
arbitrary manner and thereafter, interfered
therein and directed the authorities to finalize
the process of appointment.

35. When there is no legal vested
right if a candidate declared successful in
the
recruitment
process
to
get
the
appointment, the writ of mandamus cannot be
issued in view of the settled law that a writ
petition under Article 226 of the Constitution
is maintainable for enforcing the statutory or
legal right or when there is a complaint by an
employee that there is a breach of a statutory
duty on the part of the employer. Therefore,
there must be a judicially enforceable right for
the enforcement of which the writ jurisdiction
can be resorted to. The Court can enforce the
performance of a statutory duty by public
bodies through its writ jurisdiction at the
behest of a person, provided such person
satisfies the Court that he/ she has a legal right
to insist on such performance. The existence
of the said right is a condition precedent for
invoking the writ jurisdiction. (Vide Calcutta
Gas Company (Propriety) Ltd. v. State of
West Bengal and Ors.,AIR 1962 SC 1044;
Mani Subrat Jain and Ors. v. State of
Haryana,AIR 1977 SC 276; State of Kerala v.
Smt. A. Lakshmi Kutty,AIR 1987 SC 331;
State of Kerala v. K.G. Madhavan Pillai and
Ors.,AIR 1989 SC 49; Krishan Lal v. State of
J & K,(1994) 4 SCC 422; State Bank of
Patiala and Ors. v. S.K. Sharma,AIR 1996 SC
1669; Rajendra Singh v. State of M.P.,AIR
1996 SC 2736; Rani Laxmibai Kshetriya
Gramin Bank v. Chand Behari Kapoor and
Ors., AIR 1998 SC 3104; Utkal University v.
Dr. Nrusingha Charan Sarangi and Ors.,AIR
1999 SC 943; State of Punjab v. Raghbir
Chand Sharma and Anr.,AIR 2001 SC 2900 ;
and Sadhana Lodh v. National Insurance Co.
Ltd. and Anr. (AIR 2003 SC 1561).

36. Needless to say that on the right
of a candidate in the select list, the view
1 All. Vimlesh Kumar Sharma Vs. Central Administrative Tribunal Circuit Bench Lko & Ors. 863
of the Apex Court is that a candidate
whose name finds place in the select list
has no legal right to get appointment.

37. The Hon'ble Supreme Court in
the case of State of Haryana v. Subash
Chander Marwaha, reported in (1974) 3
SCC 220, has observed as under:-

"10. One fails to see how the existence
of vacancies give a legal right to a candidate
to be selected for appointment. The
examination is for the purpose of showing
that a particular candidate is eligible for
consideration. The selection for appointment
comes later. It is open then to the
Government
to
decide
how
many
appointments shall be made. The mere fact
that a candidate's name appears in the list
will not entitle him to a mandamus that he be
appointed. Indeed, if the State Government
while making the selection for appointment
had departed from the ranking given in the
list, there would have been a legitimate
grievance on the ground that the State
Government had departed from the rules in
this respect. The true effect of Rule 10 in Part
C is that if and when the State Government
propose
to
make
appointments
of
Subordinate Judges the State Government (i)
shall not make such appointments by
travelling outside the list, and (ii) shall make
the selection for appointments strictly in the
order the candidates have been placed in the
list published in the Government Gazette. In
the present case neither of these two
requirements
is
infringed
by
the
Government. They have appointed the first
seven persons in the list as Subordinate
Judges. Apart from these constraints on the
power to make the appointments, Rule 10
does not impose any other constraint. There
is no constraint that the Government shall
make an appointment of a Subordinate Judge
either because there are vacancies or
because a list of candidates has been
prepared and is in existence.

11. It must be remembered that the
petition is for a mandamus. This Court
has pointed out in Dr Rai Shivendra
Bahadur v. Governing Body of the
Nalanda College [AIR 1962 SC 1210 :
1962 Supp (2) SCR 144 : (1962) 2 SCJ
208 : (1962) 1 Lab LJ 247 : (1962) 4 FIR
507.] that in order that mandamus may
issue to compel an authority to do
something, it must be shown that the
statute imposes a legal duty on that
authority and the aggrieved party has a
legal right under the statute to enforce its
performance. Since there is no legal duty
on the State Government to appoint all
the 15 persons who are in the list and the
petitioners have no legal right under the
rules to enforce its performance the
petition is clearly misconceived."

38. The Hon'ble Supreme Court in
the case of Shankarsan Dash v. Union of
India , reported in (1991) 3 SCC 47, has
observed as under:

"7. 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. The decision not to fill up the
vacancies has to be taken bona fide for
864 INDIAN LAW REPORTS ALLAHABAD SERIES
appropriate reasons. 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, Neelima
Shangla v. State of Haryana, or Jatendra
Kumar v. State of Punjab.

8. In State of Haryana v. Subhash
Chander Marwaha 15 vacancies of
Subordinate Judges were advertised, and
out of the selection list only 7, who had
secured more than 55 per cent marks,
were appointed, although under the
relevant rules the eligibility condition
required only 45 per cent marks. Since the
High Court had recommended earlier, to
the Punjab Government that only the
candidates securing 55 per cent marks or
more should be appointed as Subordinate
Judges, the other candidates included in
the select list were not appointed. They
filed a writ petition before the High Court
claiming a right of being appointed on the
ground that vacancies existed and they
were qualified and were found suitable.
The writ application was allowed. While
reversing the decision of the High Court,
it was observed by this Court that it was
open to the government to decide how
many appointments should be made and
although the High Court had appreciated
the position correctly, it had "somehow
persuaded itself to spell out a right in the
candidates because in fact there were 15
vacancies". It was expressly ruled that the
existence of vacancies does not give a
legal right to a selected candidate.
Similarly, the claim of some of the
candidates selected for appointment, who
were petitioners in Jatendra Kumar v.
State of Punjab, was turned down holding
that it was open to the government to
decide how many appointments would be
made. The plea of arbitrariness was
rejected in view of the facts of the case
and it was held that the candidates did not
acquire any right merely by applying for
selection or even after selection. It is true
that the claim of the petitioner in the case
of Neelima Shangla v. State of Haryana,
was allowed by this Court but, not on the
ground that she had acquired any right by
her selection and existence of vacancies.
The fact was that the matter had been
referred
to
the
Public
Service
Commission which sent to the government
only
the
names
of
17
candidates
belonging to the general category on the
assumption that only 17 posts were to be
filled up. The government accordingly
made only 17 appointments and stated
before the court that they were unable to
select and appoint more candidates as the
Commission had not recommended any
other candidate. In this background it was
observed that it is, of course, open to the
government not to fill up all the vacancies
for a valid reason, but the selection
cannot be arbitrarily restricted to a few
candidates notwithstanding the number of
vacancies and the availability of qualified
candidates; and, there must be a
conscious application of mind by the
government and the High Court before
the number of persons selected for
appointment is restricted. The fact that it
was
not
for
the
Public
Service
Commission to take a decision in this
regard was emphasised in this judgment.
None of these decisions, therefore,
supports the appellant."

39. The Hon'ble Supreme Court in
the case of All India SC & ST
Employees' Assn. v. A. Arthur Jeen ,
1 All. Vimlesh Kumar Sharma Vs. Central Administrative Tribunal Circuit Bench Lko & Ors. 865
reported in (2001) 6 SCC 380, has
observed as under:

"10. Merely because the names of the
candidates were included in the panel
indicating their provisional selection, they
did not acquire any indefeasible right for
appointment even against the existing
vacancies and the State is under no legal
duty to fill up all or any of the vacancies
as laid down by the Constitution Bench of
this Court,after referring to earlier cases
in Shankarsan Dash v. Union of India.
Para 7 of the said judgment reads thus:

"7. 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.
The decision not to fill up the vacancies has
to be taken bona fide for appropriate
reasons. 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.
Subash
Chander
Marwaha,
Neelima
Shangla v. State of Haryana or Jatinder
Kumar v. State of Punjab."

40. The Hon'ble Supreme Court in
the case of Punjab State Electricity
Board and Others v. Malkiat Singh ,
reported in (2005) 9 SCC 22, has
observed as under:

"4. Having considered the respective
submissions made by the learned counsel for
the parties, we are of the view that the High
Court committed an error in proceeding on
the basis that the respondent had got a vested
right for appointment and that could not have
been taken away by the subsequent change in
the policy. It is settled law that mere
inclusion of name of a candidate in the select
list does not confer on such candidate any
vested right to get an order of appointment.
This position is made clear in para 7 of the
Constitution Bench judgment of this Court in
Shankarsan Dash v. Union of India which
reads: (SCC pp. 50-51) "7. 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.
The decision not to fill up the vacancies has
to be taken bona fide for appropriate reasons.
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.
Subash Chander Marwaha, Neelima Shangla
v. State of Haryana or Jatinder Kumar v.
State of Punjab."
866 INDIAN LAW REPORTS ALLAHABAD SERIES

41. The Hon'ble Supreme Court in
the case of Rakhi Ray v. High Court of
Delhi, reported in (2010) 2 SCC 637, has
observed as under:

"24. A person whose name appears
in the select list does not acquire any
indefeasible
right
of
appointment.
Empanelment at the best 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. In the instant
case, once 13 notified vacancies were
filled up, the selection process came to an
end, thus there could be no scope of any
further appointment."

42. In the case of Kulwinder Pal
Singh v. State of Punjab, (2016) 6 SCC
532, the following has been observed:

"12. In Manoj Manu v. Union of
India, (2013) 12 SCC 171, it was held that
(para 10) merely because the name of a
candidate finds place in the select list, it
would
not
give
the
candidate
an
indefeasible right to get an appointment
as well. It is always open to the
Government not to fill up the vacancies,
however such decision should not be
arbitrary or unreasonable. Once the
decision is found to be based on some
valid reason, the Court would not issue
any mandamus to the Government to fill
up the vacancies..."

43. In the case of U.P. Public
Service Commission, Allahabad and
another Vs. State of U.P. and another,
2007(5) ADJ 280 (DB) in which rights of
wait list candidate was considered by this
Court, in para-15 of the judgment it held:-

"A wait list candidate does not have
any indefeasible right to get appointment
merely for the reason that his name finds
place in the wait list." This Court in
taking the aforesaid view relied upon the
decision in Ved Prakash Tripathi Vs.
State of U.P., 2001(1) ESC 317 and
Surinder Singh and others vs. State of
Punjab and another, (1997) 8 SCC 488
and held that even a select list candidate
has no indefeasible right to claim
appointment. In para-31 of the judgment
in
U.P.Public
Service
Commission,
Allahabad and another (supra) this Court
has further held as under:

"Moreover, even in the case of a
select list candidate, the law is well
settled that such a candidate has no
indefeasible right to claim appointment
merely for the reason that his name is
included in the select list as the State is
under no legal duty to fill up all or any of
the vacancy and it can always be left
vacant or unfilled for a valid reason."

44. The select list has already
lapsed, as per the averments made in the
counter affidavit, which has not been
denied in the rejoinder affidavit.

45. In the case of Vijay Singh
Charak v. Union of India (2007) 2 SCC
(L&S) 721, it has been held that:-

"12. A select list can only be prepared
for a particular year, and only those who are
eligible in that particular year alone can be
considered for selection in the select list. Even
if the select list is not prepared in that year, it
will relate back to that particular year."

46. For the foregoing reasons, we do
not find any merit in the writ petition.
Hence, dismissed.
-----------
1 All. U.P. State Road Transport Corporation & Ors. Vs. Rajendra Prasad
867
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.08.2019

BEFORE
THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Service Bench No. 36325 of 2018

U.P. State Road Transport Corporation
&Ors. ...Petitioners
Versus
Rajendra Prasad ...Respondent

Counsel for the Petitioners:
Ratnesh Chandra

Counsel for the Respondent:
Mohd. Ali

A. Service Law - Domestic Enquiry - Bus
Conductor/Employee
found
carrying
ticketless passengers - Termination -
Tribunal, allowed the claim on finding -
16
ticketless
passengers
were
not
examined - Held:- Finding of Tribunal is
perverse
-bus
Conductor/employee
failed to plead and state/prove prejudice
caused to him by not producing and
examining other four persons - Nonexamination
of
driver
and
other
members of the inspecting team would
not vitiate the enquiry-

Claimant/respondent being conductor of the
bus was entrusted with the duty to collect
tickets from the passengers and deposit the
same with the Corporation in which he failed.
(Para 20,24,25,26,27,32,34,36,38,39)

Writ Petition Allowed.

Case Law Relied Upon/ Discussed: -
1. Special Appeal No. 33 of 2015 decided on
12.04.2017
(U.P.
State
Road
Transport
Corporation Lucknow & Others v. Sarvesh
Kumar Shukla)

2. Divisional Controller, KSRTC (NWKRTC) v.
A.T. Mane, (2005) 3 SCC 254
3. North West Karnataka Road Transport
Corporation v. H.H. Pujar; (2008) 12 SCC 698

4. Union of India and others. v. Prakash Kumar
Tandon; (2009) 2 SCC 541

5. Suresh Chandra Sharma
v. Rajaswa
Parishad U.P. and others; AIR 1971 Alld. 12
6. Uttarakhand Transport Corporation (earlier
known as UPSRTC) and others v. Sukhveer
Singh; (2018) 1 SCC 231

7. ECIL v. B. Karunakar; (1993) 4 SCC 727

8. Haryana Financial Corpn. v. Kailash Chandra
Ahuja (2008) 9 SCC 31

9. UPSRTC v. Suresh Chand Sharma; (2010) 6
SCC 555

10. Rajasthan State TPT Corporation and another
v. Bajrang Lal, (2014) 4 SCC 693
Writ Petition allowed (E-3)

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard learned counsel for the
petitioners
and
Mohd.
Ali,
learned
counsel for the respondent.

2. By means of the present writ petition,
the petitioners have challenged the order dated
05.09.2018, passed by the U.P. Public
Services Tribunal, Lucknow in Claim Petition
No. 214 of 2016 (Rajendra Prasad v. State of
U.P. and others), annexed as Annexure No. 1
to the writ petition.

3. The facts in brief of the present
case are as under:-

4.

Sri
Rajendera
Prasad,
claimant/respondent was the conductor of
Bus bearing Registration No. U.P.53 T
8956 of U.P. Road Transport Corporation
(in short "UPSRTC"), when it was plying