Allahabad High Court
Gyanesh Kumar Pathak And Another vs Union Of India And 2 Others on 23 February, 2021
Bench: Manoj Misra, Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 21 of 2021
Appellant :- Gyanesh Kumar Pathak And Another
Respondent :- Union Of India And 2 Others
Counsel for Appellant :- Vineet Kumar Singh,Abhishek Dwivedi
Counsel for Respondent :- A.S.G.I.,Anurag Sharma
Hon'ble Manoj Misra,J.
Hon'ble Rohit Ranjan Agarwal,J.
Heard Sri Abhishek Dwivedi for the appellants; Sri Shashi Prakash Singh, learned Additional Solicitor General, assisted by Sri Anurag Sharma, Advocate, for the respondents.
This intra court appeal is by the writ petitioners (the appellants herein) against the judgment and order dated 23.11.2020 passed by the learned Single Judge in Writ-A No.4296 of 2020 by which their writ petition has been dismissed.
In a nutshell, the facts giving rise to the instant appeal are as follows:-
Staff Selection Commission (for short S.S.C.) advertised and conducted a written examination for 1102 posts of Scientific Assistant in India Meteorological Department. The initial result was declared on 13.02.2018 but the list of 1102 provisionally selected candidates with 551 candidates kept in a reserve panel was published by S.S.C. on 31.10.2018. After completion of the joining process of 1102 selected candidates, 235 vacancies arose on account of non joining/resignation/death, etc. Consequently, a category-wise list of 235 candidates from 551 candidates in the reserve panel was notified on 23.10.2019 as per which the candidates falling in the unreserved category in the reserve panel with marks upto 136.25 (cut off marks) were recommended for appointment. The appellants could not find their name in that list as they had secured 135.75 marks i.e. below the cut-off for unreserved category. By claiming that even after that there remained 25 vacancies, the appellants filed Writ-A No.4296 of 2020 with a prayer that the respondents be commanded to issue appointment to the appellants in lieu of their name being there in the reserve panel of select list dated 31.10.2018.
A counter affidavit was filed by the respondents during the writ proceedings stating therein that by applying DoPT Office Memo dated 13.06.2000, 235 candidates from the reserve panel were recommended for appointment vide notification dated 23.10.2019. The cut-off for the unreserved category was 136.25 marks and as both the appellants (writ petitioners), who belong to unreserved category, were having 135.75 marks their name could not find place in the list of 235 candidates recommended from the reserve panel. A plea was also taken that the reserve panel is valid only for a period of one year and as the initial select list was published on 31.10.2018, the life of the panel stood exhausted on 31.10.2019, after recommendation from the reserve panel was made on 23.10.2019, therefore no further recommendation could be made by utilizing the reserve panel.
Learned Single Judge after considering the rival submissions took the view that as the respondents had proceeded to fill up 235 vacancies, that arose on account of resignation or death of incumbent or by non joining of a recommended candidate within the stipulated period, from the reserve panel and had taken a conscious policy decision not to utilize the reserve panel for filling up any further vacancy, keeping in mind that on mere empanelment in the select list the writ petitioners would not derive any indefeasible right to appointment, the writ petition is liable to be dismissed.
The learned counsel for the appellants has urged that the learned Single Judge has not taken notice of the fact that there existed vacancies even after notifying candidates from the reserve panel and therefore the petitioners were entitled to relief in view of the DoPT Office Memo dated 13.06.2000.
Learned ASGI appearing on behalf of the respondents has submitted that indisputably the select list with the reserve panel was published on 31.10.2018. As per the DoPT circular dated 13th June, 2000 its life is one year and within that period vacancies that arose, 235 in number, on account of non-joining of a recommended candidate or otherwise, were recommended to be filled up by 235 candidates from the reserve panel by notification dated 23.10.2019. The cut-off marks for the unreserved category was 136.25 whereas the appellants had secured 135.75 marks therefore their name did not find mention in the notified list dated 23.10.2019. Importantly, the last date for submission of documents by the selected candidates for formalizing their appointment was extended from 04.11.2019 to 15.11.2019. Thus, since the reserve panel could be utilized till 31.10.2019, no appointment was offered to the appellants against vacancy, if any, that arose on non joining by some of the candidates recommended from the reserve panel. Moreover, in absence of the allegation of discrimination, no indefeasible right accrues for appointment on mere empanelment in a select list. Hence, the view taken by the learned Single Judge calls for no interference. In support of his submissions, he has placed reliance on a decision of the Apex Court in the case of Commissioner of Police & Another Vs. Umesh Kumar, 2020 Supreme (SC) 575 and a Division Bench decision of this Court in U.P. Public Service Commission Allahabad & Another Vs. State of U.P. & Another, 2007 (5) ADJ 280.
Having heard the learned counsel for the parties and upon perusal of the record, we find that it is not in dispute that 235 vacancies that arose due to non joining/resignation/death of already recommended 1102 candidates were recommended to be filled from the reserve panel vide notification dated 23.10.2019. According to which, the cut-off marks for the unreserved category was 136.25 whereas the appellants, who belong to that category, had only 135.75 marks. It is also not in dispute that as per DoPT Office Memo dated 13.06.2000, the vacancies resulting from resignation or death of an incumbent within one year of his appointment or on account of non-joining by the candidate within stipulated period were to be filled from the reserve panel. The record reflects that such left over vacancies, 235 in number, were recommended to be filled from the reserve panel vide notification dated 23.10.2019. This recommendation was well within one year as the initial select list was published on 31.10.2018. However, from the record it appears that the last date for submission of documents/papers by the recommended candidates for formalizing their appointment was extended from 04.11.2019 to 15.11.2019 which falls after expiry of one year from the date of publication of initial select list. Therefore, any vacancy that remained unfilled thereafter, could well be kept vacant, if the employer choses so. More so, because an employer cannot be forced to offer appointment to a selected candidate on mere empanelment in a select list in view of Constitution Bench decision of the Apex Court in the case of Shankarsan Dash Vs. Union of India (1991) 3 SCC 47, which has been consistently followed and also noticed in Commissioner of Police & Another Vs. Umesh Kumar (Supra), where it was held that a candidate has no indefeasible right to appointment merely because his name is included in the select list. Otherwise also, we find no cogent material on record to hold that by not offering the left-over vacancy, if any, to the writ-petitioners the respondents were acting discriminately or arbitrarily.
In view of the above, the decision taken by the learned Single Judge cannot be faulted. The appeal is therefore dismissed.
Order Date :- 23.2.2021
AKShukla/-
