Mr. Dilip Ramji Kamble And 14 Ors vs The State Of Maharashtra And 5 Ors
2018 Latest Caselaw 592 Bom

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Ladda 
                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                              ORDINARY ORIGINAL CIVIL JURISDICTION

                                      WRIT PETITION NO.749 of 2014.

         1         Dilip Ramji Kamble,
                   aged 44 years, Occup.service,
                   Yash Apartment, 3/105, Badlapur,
                   Hendrepada, taluka Ambernath,
                   District Thane.

         2         Tanaji Kishna Desai,
                   Aged 54      years, Occup-service. 
                   716/C.4, Shivsagar Society,
                   Sector-7, Charkop,  Kandivali(W),
                   Mumbai-67. 

         3         Jaggannath Krishna Bandgar,
                   Aged   41    years, Occup-service. 
                   New Pragati Co-op Hsg. Society 
                   Ltd. A/12/14, Sector 24, Nerul (W),
                   Navi Mumbai 400 706.                                  ...Petitioners.


         4         Rohit Dattaram Kawle,
                   Aged    35   years, Occup-service. 
                   A/1, Swami Apartment, (Near)
                   Swami Samarth Math, Nandivli
                   Road, Dombivli.

         5         Pramod Pandurang Warang,
                   Aged 45      years, Occup-service. 
                   10/A, Mahadev Niwas,
                   Sarvoday Nagar, JM Road,
                   Bhandup (W) Mumbai-78. 

         6         Ganesh Gopinath Chavan


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          Aged  41     years, Occup-service. 
          Devagiri Co-op Society Ltd.
          Bldg No.4/415, Atmaram Nagar,
          Lokgram Kalyan (East)-421 306. 

7         Arjun Dalpat Jadhav
          Aged  47     years, Occup-service. 
          B Wing, 202, 2nd Floor, 
          Sai Sradha Apartment, Tisgaon,
          Poona Link Road, Kalyan (East) 421 306


8         Akosh Viswanant Pawar
          Aged   31    years, Occup-service. 
          Gurudev Datta Apartment,
          Room No.4, Ground Floor, Kolsewadi
          Kalyan (East) 421 306


9         Raju Laxman Ugale
          Aged    34   years, Occup-service.                  ...Petitioners.
          Amrit Kunj Co-op Hsg. Society Ltd.
          Sai Kunj Bhavan, Room No.G/6,
          Ganesh Nagar, Tisgaon Road,
          Kalyan (East) 421 306
           

10        Pandharinath Bhoraji Kunde
          Aged    31   years, Occup-service. 
          1/7, Modern Co-op Hsg. Society. 
          Sabadri Park, Katemanivli, Kalyan 
          (East) 421 306

11        Prasad Padelkar,
          Aged  44     years, Occup-service. 
          A/11, Shree Co-op. Hsg. Society,
          Tansa Pipe Line Road, 
          Chembur, Mumbai 400 089


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12        Sanjay Nana Sawant
          Age       Occup-service. 
          Maya Co-op. Hsg. Society,
          Chandan Park, Jessal Park Road,
          Bhayander (E), District Thane- 401105


13        Late Yogesh Damodar,
          Age   Occup-service. 
          D-103, GM Nagar, Narangi,
          Virar (East), District Thane,
          Taluka Vasai.

14        Versha Rajan Mistry,
          Aged    37   years, Occup-service.
          A-104, Chandesh Udyan Lodha
          Heritage, Nandivali Road, Dombivali(E). 

15        Dayanand Krishna Pawar,
          Aged 35      years, Occup-service. 
          R/at G-96, Mata Ramabai Ambedkar
          Nagar, Dr. E Moses Road, Worli,
          Mumbai 400 018.                                       ...Petitioners.

                  Versus.

1         The State of Maharashtra,                             ..Respondents. 
          Through: The Principal Secretary (Services),
          The General Administration Department,
          Mantralaya, Mumbai 400 032

2         The Brihanmumbai Municipal Corporation,
          Through: the Commissioner,
          Brihanmumbai Municipal Corporation,
          Mumbai

3         The Commissioner Brihanmumbai,
          Municipal Corporation, 
          Mumbai 400 001.

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4         The Additional Commissioner
          Brihanmumbai Municipal Corporation
          Mumbai 400 001.

5         The Deputy Commissioner
          Brihanmumbai Municipal Corporation
          Mumbai 400 001.

6         The Chief Personnel Officer,
          Brihanmumbai Municipal Corporation,
          Mumbai 400 001.                                              ..Respondents. 

Dr. Suresh T. Mane, Advocate for the Petitioners.
Mr. Anil Shastri, AGP for Respondent No.1.
Mr. A.Y. Sakhare, Senior Advocate a/with Mr. J.J. Xavier for 
Respondent No. 2 to 6. 

                                   CORAM  :   S.C. DHARMADHIKARI &
                                               SMT.BHARATI H.DANGRE, JJ.

RESERVED ON: 4 th December, 2017.

Pronounced on : 18 th January, 2018.

JUDGMENT (Per : Smt. Bharati H.Dangre,J).

1) Rule. Respondents waive service. By consent, Rule is made

returnable forthwith and the petition is taken up for hearing and final

disposal.

2) The factual position which emerged in this case, during the

course of hearing and as per the memo of writ petition is as under :-

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The petitioners, employees of Respondent No.2/Municipal

Corporation Greater Mumbai (hereinafter referred to as MCGM) working

in lower cadre posts i.e. Class IV posts, have filed the present petition

challenging inaction on the part of Respondent No.2 MCGB in not issuing

appointment orders in favour of the petitioners on clerical posts. The

petitioners have prayed for issuance of a writ of mandamus, order or

direction for issuing appointment orders in their favour on clerical posts,

pursuant to the selection process initiated by respondent No.2 by holding a

written Examination on 30/1/2011 and result of which was declared on

6/8/2011. The petitioners have claimed that they have passed the

examination held for the promotion to the post of clerks. The petitioners

have contended that the General Administration Department under the

control of Respondent No.2 and 3 issued a Circular on 17/7/2010 being

No. MPR 2205 indicating eligibility criteria for the posts of clerks on the

establishment of respondent No.2 and 3. According to the petitioners,

Circular dated 17/7/2010 provided two modes for selection for the post of

clerk i.e. direct recruitment to the extent of 67% of the posts and

remaining 33% posts were to be filled in by selection from eligible lower

cadre employees i.e. the petitioners who have succeeded in the

Departmental Examination.

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The Circular dated 17/7/2010 lays down the following eligibility

criteria for lower grade employees for appearing for the Department

Examination for selection to the posts of clerks.

a) One should have passed SSC or equivalent examination and (a) worked on monthly salary for not less than four years or on daily basis in fair season for not less than five years (b) who has worked for at least four hours daily or for not less than continuous eight years as part-

time employees of the Municipal Corporation.

b) One should have passed SSC or equivalent examination or higher examination with Marathi and English subjects for 100 marks.

c) One should possess a Marathi or English typing certificate issued by the State for 30 words per minute.

d) One should have knowledge of computer fundamental, Operating system, word processing, electronic spread sheet and on database management as well as possess a Certificate of MS-CIT as per provisions of Circular No. MPM/2/6381 dated 19/11/2005.

(If one does not possess the MS-CIT Certificate then the same would be required to be produced within a period of two years from appointment as clerk).

4) According to the petitioners, the Circular dated 17/7/2010

was modified on 6/1/2011 by issuing a Corrigendum No.MPR/4433 by

which the existing condition mentioned in clause 1(B), requiring the

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employees to be considered from the lower grade employees for

appointment whose daily working hours are not less than 4 hours and

whose continuous period of service is not less than 8 years and such part

time employees in the service of the Municipal Corporation for Greater

Mumbai, being eligible for consideration, was modified by requiring the

employees whose working hours per day are not less than 4 hours and

whose continuous period of service is not less than 8 years, to be

considered to be eligible. The respondents issued Notice on 28/4/2011

inviting applications for 334 posts of Lower Grade Clerks from eligible

candidates amongst the lower grade employees in MCGB, Mumbai. The

petitioners applied for the post of clerk as they were eligible and complied

with the Circular of the MCGB for the examination for the post of clerk.

According to the petitioners, respondent No.2 scrutinized the applications

of the petitioners and during scrutiny they were found eligible. The

petitioners attended the examination on 30/7/2011 and result was

declared on 6/8/2011 and the petitioners secured 40% marks and they

became eligible for the post of clerk. The petitioners have contended that

though the petitioners have passed the examination, no appointment

orders have been issued to them. According to the petitioners, at present

1116 posts of clerks are vacant and out of which 368 posts are available

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for promotion.

5) The petitioners are aggrieved by the non-issuance of

appointment orders in their favour, in spite of passing of the requisite

examination and being qualified for the post of clerk. The petitioners also

allege that the respondents have again issued advertisement declaring total

1247 posts of clerk to be vacant and according to the petitioners said

advertisement was issued on 15/10/2011. The petitioners have therefore

prayed for issuance of appointment order in their favour to the post of

clerk. They have also prayed for their absorption in 33% quota meant for

promotional cadre and they also prayed for reckoning their seniority in an

appropriate manner.

6) In support of the contentions raised in the petition, we have

heard Dr. Suresh T. Mane, Advocate for the Petitioners, Mr. Anil Shastri,

AGP for Respondent No.1, Mr. A.Y. Sakhare, Senior Advocate a/with Mr.

J.J. Xavier for Respondent No. 2 to 6.

7) The learned Counsel for the petitioners would vehemently

argue that the petitioners have been deprived of their right to appointment

in spite of the fact that they have been selected for the post of clerk and

they have undergone the entire procedure for its selection. The learned

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Counsel for the petitioners relied upon a chart presented during the course

of hearing to advance his submission that amongst the petitioners one

Pramod Gangaram Warang has secured 49 marks and still he has not been

issued with an order of appointment. He relied upon the judgment of the

Hon'ble Apex Court in case of East Coast Railway and Another Vs.

Mahadev Appa Rao and others (2010) 7 Supreme Court Cases 678 to

canvass his submission that it is always permissible to have a judicial

review of the recruitment process at the instance of this Court when such

process suffers from arbitrariness. He, by relying upon the said judgment

would argue that though a candidate who has passed in examination or

whose name appears in the select list does not have an indefeasible right to

be appointed, yet appointment cannot be denied arbitrarily nor can his

selection be cancelled without giving proper justification. He also relies

upon the judgment of the Hon'ble Apex Court in Civil Appeal No. 6707 of

2013 (Manoj Manu and Anr Vs. Union of India and Ors) decided on 12 th

August, 2013.

8 Respondent No.2 MCGM is represented by learned Senior

Counsel Shri Sakhare, who advanced his exhaustive submissions. He also

relied on the affidavit-in-reply filed by the MCGM on 29/4/2015 and also

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an additional affidavit. The learned Senior Counsel invited our attention

to the Rules permitting the post of clerk to be filled in and according to

him the posts of clerk on the establishment of the MCGM are to be filled in

through two sources, in different proportions. According to the learned

Senior Counsel, 67% of the post of clerk are to be filled in by direct

recruitment i.e. by inviting applications from open market and even the

candidates who are on the establishment of MCGM can also apply as an

outsider, whereas 33% of the post of clerks are to be filled in by in service

candidates i.e. those already on the establishment of MCGM and occupying

the post in lower cadre. According to Shri Sakhare, as on 24/4/2011 there

were 4691 vacant posts in the clerical cadre and the total vacancies for in

service candidates in the 33% quota were 334 which included 171 posts to

be filled in from open category and 163 posts from the reserved category

candidates. According to the learned counsel, an advertisement was issued

initiating process for filling up 1247 posts from open candidates (67%

quota). He further submitted that an advertisement was issued on

28/4/2011 for selection of lower grade clerical cadre for 334 in service

candidates. He would submit that the respondent MCGM received 626

applications for the said posts and the written examination was conducted

in which 581 candidates appeared including the present petitioners and

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475 in service candidates were declared to have passed the examination.

Out of 475 candidates, the MCGM issued appointment orders in favour of

329 in service candidates, including the open as well as reserved category

candidates. Mr. Sakhare, learned Senior Counsel, would submit that a writ

petition No. 10016/2011 was filed before this Court where a grievance

was made that marks which were taken into consideration for appointment

in the open category and on which the list of this category was closed is

much less than the marks upon which it closed down in the reserved

category. In the said writ petition, it was contended that the candidates in

the open category who have received 49 marks were appointed whereas

the candidates under reserved category were required to secure 56 or more

marks on being selected. In the said writ petition, according to the

learned counsel, MCGM filed an affidavit submitting an undertaking before

the Court that the MCGM will absorb all such candidates in the reserved

category who have secured 49 marks and in the light of the said affidavit,

the Court was pleased to dispose of the said writ petition. According to the

learned Senior Counsel, 49 marks was accepted as cut-off by MCGM in the

light of the said statement which was also approved by this Court.

Accordingly, the MCGM appointed 98 candidates from the reserved

category who had secured marks 49 or more. Balance 48 candidates were

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left out which included the candidate from reserved and open category

who secured marks between 40 to 49 but could not be appointed as the

posts were filled in by appointing 98 persons belonging to reserved

category. Thus, in the year 2011 though 334 posts were available to be

filled in, in 33% quota, but the actual posts filled in were 427. However,

the petitioners did not fall within 98 candidates who were additionally

appointed in view of the decision in writ petition and rather they belong to

those 48 candidates who fell within the range of 40 to 49 marks.

According to the learned Senior Counsel, the MCGM has appointed

candidates who have successfully passed the written examination and

secured minimum cut-off marks of 49 and in fact in the year 2011, 427 in

service candidates were appointed even though the posts available for the

said category were 334. According to the learned Senior Counsel, out of

those 427 appointments, 21 persons did not join and those 406 candidates

were inducted in the cadre of clerk from the lower cadres. In the year

2012-13 there was no recruitment process and on 1/3/2014 an

advertisement was issued for recruitment of 295 candidates from 33%

quota i.e. service quota and examination was conducted in pursuance of

the said advertisement on 2/3/2014. According to the learned Senior

Counsel, seven petitioners appeared in the written examination conducted

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on 2/3/2014 and two candidates were successful and in fact they were

appointed.

The emphasis of learned Senior Counsel is on the fact that the

petitioners cannot claim an indefeasible right of appointment even though

their names are included in the select list and the learned Senior Counsel

placed heavy reliance on a Circular issued by the MCGM on 28/4/2011

which has been placed on record by the petitioners. According to the

learned Senior Counsel for the Respondent-MCGM, as per the said Circular,

validity of the said select list is for one year in the process of filling up of

the post to the direct recruitment. However, as far as departmental

employees are concerned, the life of the select list has been fixed as two

years. According to the learned Senior Counsel, the petitioners who have

approached this Court in the year 2014, when the select list was prepared

pursuant to the examination in furtherance of an advertisement issued on

28/4/2011 did not subsist and the said select list has worked itself out.

The learned Senior Counsel therefore prays for dismissal of the writ

petition by relying upon the judgment of the Hon'ble Apex Court in the

case of State of Orissa vs. Rajkishor Nanda and Ors reported in (2010)

6 SCC 776 and in case of Vijaykumar Pandey Vs. Arvind Kumar Roy &

Ors (2013) 11 SCC 661.

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9                 We have carefully perused the writ petition along with all its 

annexures and the affidavit filed by the Respondent-Corporation and we

have also considered the submissions advanced on behalf of both parties

through their respective counsels. It is an undisputed fact that the

petitioners applied in pursuance of an advertisement issued by the MCGM

for filling up the posts of clerk by which the applications were invited for

334 posts of lower grade clerical cadre. The said advertisement provided

for social reservation and other reservation on the basis of gender and

physical disability and the sports quota. It is not in dispute that the

petitioners appeared for the written examination conducted for selection of

the candidates and secured passing marks of 40. The petitioners awaiting

their order of appointments, preferred applications seeking information

under the Right to Information Act to know the vacancy position and the

operation of the select list in pursuance of the advertisement to which they

had applied to MCGM. The petitioners continued to make repeated

representations requesting for their appointment orders to be issued to the

post of clerk and they at times also asserted through Association and Union

of MCGM. On perusal of the writ petition, we have come across a noting

on the file of the General Administration Department (GAD) of the MCGM

dated 21/5/2013 which is obtained by the petitioners under the Right to

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Information Act. Perusal of the said noting reveals that an application in

the form of request was addressed to the Hon'ble Commissioner and the

recommendations were made by the Mayor for merging the employees

from all categories from lower cadre employees securing marks from 40 to

49 on the post of clerk. Pursuant to this reference, a decision was taken in

the backdrop of peculiar fact that the candidates from the reserved

category had secured more marks than the candidates from the open

category and such candidates had approached the Court by filing the writ

petition and in order to remove the disparity, a statement was made before

the Court that those candidates from reserved category who have secured

marks between 49 to 56 would also be accommodated. In pursuance of

such a decision being taken 98 candidates belonging to reserved category

who secured marks up to 49, also came to be appointed resulting into 475

candidates being appointed. The said noting also sets out the bifurcation

of the category of the candidates who had appeared for the written

examination conducted on 30/1/2011 and had secured marks in the range

of 40 to 49 who were not issued orders of appointment.

10 Perusal of the said noting reveals that a representation was

also made by the candidates who had cleared the examination but did not

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reach up to the benchmark of 49 marks. The office note of the respondent

sets out that the issue has already been set right and the waiting list would

be valid only as against 334 posts and would be operated only if any

candidates from 334 candidates did not join and this list will not be

operated for any future vacancies to be created and if at future point of

time the vacancies are created, examination would be further conducted.

11 When we have perused the affidavit filed on behalf of the

Respondent Corporation dated 27/4/2015 and we could find that the said

decision taken and reflected in the said noting is reproduced with the

detail figures in the affidavit-in-reply. The affidavit-in-reply has

categorically stated that the petitioners belong to the balance 48

candidates who have secured marks ranging between 40 to 49 and

therefore could not reach the cut-off marks which was accepted by the

MCGM and though they have cleared the examination by securing

minimum 40 marks, they could not reach the cut-off level of 49 marks and

were not found eligible to be appointed in pursuance of an advertisement

issued in the year 2011. A fresh recruitment process was conducted in the

year 2014 and it was open for the petitioners to apply again and

participate in the selection process. In fact, seven petitioners participated

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in the examination conducted in pursuance of a subsequent development

and two of the petitioners namely petitioner No. 3 and 10 qualified

themselves and were issued with appointment orders on 3/10/2016 and

4/10/2016. Remaining petitioners did not choose to participate in the

subsequent round of recruitment and did not avail of the opportunity of

entering into higher cadre.

12 We are unable to accept the contentions advanced on behalf of

the Counsel for the petitioners that in pursuance of the petitioners clearing

written examination and qualifying themselves by securing minimum

marks, they have right of being appointed. It is settled position in law that

mere placement in the select list or panel does not by itself entitle a

candidate whose name figures in such select list or panel to seek

appointment and to claim that it is his indefeasible right to be appointed.

We would gainfully refer to the observations of the Hon'ble Apex Court in

case of Shankarsan Dash v. Union of India reported in (1991) 3 SCC 47

where a Constitutional Bench was examining the identical issue as to

whether candidates declared successful in the selection process acquired

an indefeasible right to get appointed against the available vacancies. The

Hon'ble Apex Court in paragraph 7 repelled the said contention and

observed as below :-

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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".

(emphasis supplied)

13 The said decision was followed in a catena of decisions

rendered subsequently and by now it has become settled proposition of

law that a person whose name features in the select list does not acquire

an indefeasible right to seek an appointment and his empanelment at the

most is out of eligibility for the purpose of his appointment but does not

confer a right of appointment in him. Though the petitioners in the

present case would argue that the petitioners were declared successful in

the written examination conducted on 31/7/2011 by securing more than

40 marks, we have noted that for 334 posts which were advertised to be

filled in from in service candidates, 581 candidates had appeared in the

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examination and 475 candidates cleared the said examination. The

number of candidates who cleared the examination was more than the

number of vacancies to be filled in and initially 329 candidates came to be

appointed which included the candidates from open as well as reserved

category. In a writ petition being filed before this Court, to which we had

made reference in the above paragraph, the MCGM undertook before the

Court to absorb candidates from the reserved category who have secured

marks between 49 to 56 and thus appointed 98 candidates from reserved

category who were able to make it to the cut-off marks of 49 marks. The

petitioners are the candidates who secured the marks below 49 barring

petitioner no.5 Pramod Warang who had secured 49 marks. It is not the

case of the petitioners that the candidates who have secured less marks

than them have been inducted on the post of clerk. The respondents have

applied a benchmark of 49 marks to both open and reserved category and

while operating the list of open category, the last candidate to be absorbed

was with 49 marks whereas in case of reserved candidate, last candidate to

be admitted was at 56 marks and in order to remove the disparity and

anomaly, the MCGM itself had committed to this Court that it would

appoint candidates from reserved category who had secured 49 or more

marks and the Municipal Corporation has abided by the said statement

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made before this Court.

14 The petitioners before us are claiming an appointment on the

basis of a select list prepared on 6/8/2011 based on the marks secured by

the candidates in the written examination conducted on 30/7/2011. The

Respondent Municipal Corporation on 20/6/2001 by issuing Circular has

already fixed the life of a select list/wait list and has laid down a policy

determining the life of the select list/wait list to be two years in case of

selection from the category of departmental employees. Going by the

norms applicable for the employment in MCGM, quota of the 33% is to be

filled in by any service candidates, the life of a panel/select list would be of

two years. The petitioners have approached this Court by filing the

present writ petition in February, 2014, at a point of time when the select

list in which the names of the petitioners appeared was already exhausted.

The petitioners are reckoning their claim as the select list prepared in

furtherance of an advertisement issued on 28/4/2011 is still subsisting and

one look at the prayers made by the petitioners in the writ petition would

reveal that the petitioners want this Court to issue a writ to issue

appointment orders to the petitioners in pursuance of the selection process

which was initiated in the year 2011. We are mindful of the fact that the

select list is no longer alive in the light of the policy of the

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respondent/Corporation. Shri Sakhare, learned Senior Counsel, has

rightly relied upon the judgment of the Hon'ble Supreme Court in the case

of State of Orissa Vs. Rajkishore Nanda (supra), wherein the Apex Court

has held that a select list cannot be treated as a reservoir for the purpose of

appointments and that the vacancies can be filled up by taking the names

from the select list as and when required. The Apex Court made the

following observations in paragraphs 13, 14 and 15 as under:-

13. "In Mukul Saikia and Ors. v. State of Assam and Ors. AIR 2009 SC 747, this Court dealt with a similar issue and held that "if the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised". The Select List "got exhausted when all the 27 posts were filled". Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The "currency of Select List had expired as soon as the number of posts advertised are filled up, therefore, the appointments beyond the number of posts advertised would amount to filling up future vacancies" and said course is impermissible in law.

14. "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 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

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per the statutory rules and in conformity with the constitutional mandate.

15. A Constitution Bench of this Court in Shankarsan Dash Vs. Union of India, AIR 1991 SC 1612, held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of candidate's name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. (see also Asha Kaul & Anr. Vs. State of J & K & Ors., (1993) 2 SCC 573;

Union of India Vs. S.S.Uppal, AIR 1996 SC 2340;

Bihar Public Service Commission Vs. State of Bihar AIR 1997 SC 2280; Simanchal Panda Vs. State of Orissa & Ors., (2002) 2 SCC 669; Punjab State Electricity Board & Ors. Vs. Malkiat Singh (2005) 9 SCC 22; Union of India & Ors. Vs. Kali Dass Batish & Anr. AIR 2006 SC 9 789; Divisional Forests Officers & Ors. Vs. M. Ramalinga Reddy AIR 2007 SC 2226; Subha B. Nair & Ors. Vs. State of Kerala & Ors., (2008) 7 SCC 210; Mukul Saikia & Ors. Vs. State of Assam & Ors., (2009) 1 SCC 386; and S.S. Balu & Anr. Vs. State of Kerala & Ors., (2009) 2 SCC 479).

The Apex Court has clearly held that it is the settled legal proposition that

no relief can be granted to the candidate if he approaches the Court after

the expiry of the select list and if the selection process is over, select list has

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expired and appointments have been made, no relief can be granted by the

Court at a belated stage. In the said decision, the Apex Court has also

categorically held that mere empanelment does not give a vested right in

favour of an empanelled candidate. Applying the said principle of law laid

down by the Hon'ble Apex Court, we can safely conclude that the select list

or the so called empanelment which the petitioners claim, is no longer in

existence as the life of the select list has expired and the list prepared on

the basis of the marks obtained by the candidates in the written

examination, has worked itself out, 427 appointment orders were issued in

favour of candidates to fill in 33% in service quota as against 334 posts

available on the establishment of MCGM in the cadre of clerk. There is an

intention and object in affixing a life to any select list. When a public body

undertakes a process of selection for any particular post and issues an

advertisement and carries out the selection process by conducting written

examination and in some cases by holding or conducting personal

interviews and thereafter issues an order of appointment in favour of the

candidates as against the number of vacancies mentioned in the

advertisement the procedure for selection consumes the considerable time

ranging in between six months to one year or sometime even more.

During the said period there might be some candidates who may be

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eligible to compete and participate in the process of selection either they

become eligible on account of their age or they become eligible by

acquiring necessary qualifications prescribed for the said post. The time

gap between the advertisement and the process of selection till its

completion breeds new eligible candidates and if the select list which is

prepared on the basis of the advertisement issued is continued or operated

till all the vacancies are filled in, it would cause injustice to such

candidates who have become eligible during the interregnum period. The

public bodies are expected to adopt a transparent procedure and is

expected to await new talent and instead of operating the select list and

selecting the persons lower in rank of merit, it would be more gainful for

the public bodies to secure candidates with fresh blood and vigour and

more merit by initiating a fresh selection procedure. If the public bodies

are permitted to operate the select list for years together, it would get tool

to operate the select list and it may result into nepotism which would be

detrimental to the public interest. In such circumstances, we feel that

fixing a life span for select list has its own advantages and as the Apex

Court has observed in case of Orissa Vs. Rajkishore Nanda (supra), it is

not a reservoir for the purpose of appointments to fetch the candidates as

and when it wants.

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The petitioners in the present case have approached this Court

after the life of the select list in which their name feature has expired and

they cannot claim the relief of being appointed to the post of clerk on the

basis of examination which was conducted on 30/1/2011 and stake their

claim against the vacancies in the cadre of clerk which exists even today.

The respondent had issued an advertisement subsequent to the

advertisement in pursuance of which the petitioners had participated and

one such advertisement was issued in the year 2014 in which seven

petitioners participated and even two were successfully appointed. It was

open to the petitioners to participate in the subsequent selection procedure

to fill up the remaining vacancies and it is even now open for them, if it is

permissible as per the service rules to respondent to any advertisement to

be issued for filling up the 33% quota of in service candidates, if they so

desire. However, in our view, it is not permissible for the petitioners to

stake their claims on the basis of selection process initiated in the year

2011 and it is not within our jurisdiction to command the respondents to

operate the select list prepared by them in pursuance of examination held

on 30/7/2011 and issue appointment order to the petitioners.

 

15                In the result, we are  disinclined to grant any relief as prayed 

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by the petitioners in this writ petition and we dismiss the writ petition

being without any merit and substance and the writ petition is dismissed.

Rule stands discharged. No order as to costs.

[SMT. BHARATI H.DANGRE, J.]                  [S.C. DHARMADHIKARI, J.]




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