Sudhansh Sharma vs Indira Gandhi Open University
2011 Latest Caselaw 4369 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Judgment reserved on: 12th August, 2011

%                              Judgment pronounced on: 7th September, 2011


+     LPA No.257/2010

      SUDHANSH SHARMA                         ..... Appellant
                  Through: Dr.L.S. Chaudhary with Mr.Ajay
                           Chaudhary & Mr.Pradeep Rana, Advs.

                            Versus

      INDIRA GANDHI NATIONAL OPEN UNIVERSITY..... Respondent

Through: Mr.Aly Mirza, Adv.

CORAM:

      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE SANJIV KHANNA

1   Whether reporters of the local papers be allowed to see the judgment?      Yes
2   To be referred to the Reporter or not?                                     Yes
3   Whether the judgment should be reported in the Digest?                     Yes

DIPAK MISRA, CJ

The present intra-Court appeal is directed against the order dated

3rd March, 2010 passed by the learned Single Judge in WP (C) No.

3077/2007 whereby he has declined to accede to the prayer of the

appellant for issue of a writ of mandamus to the respondents to appoint

LPA No.257/2010 page 1 of 13 him on the post of permanent lecturer in the school of Computer and

Information Sciences with the respondent, namely, Indira Gandhi National

Open University (IGNOU).

2. The facts which are essential for adjudication of the present appeal

lie in a narrow compass. The IGNOU issued an advertisement for filling

up one post of lecturer in the school of Computer and Information

Sciences. After being qualified in the interview, a panel of two candidates

was recommended by the Selection Committee against the one notified

vacancy. Shri Naveen Phougat was the first selected candidate in the select

panel approved by the Board of Management in its 86th meeting held on 1st

April, 2006. Shri Phougat joined the respondent-university on 15th

September, 2006 but eventually resigned from the post on 12th March, 2007,

which was accepted by the Vice-Chancellor vide office order No.292 dated

16th March, 2007. In the meantime, the appellant was appointed against a

leave vacancy as one Shri P.V. Suresh had gone on study leave. After the

said Suresh came from leave, the vacancy came to an end and the

appellant was relieved.

LPA No.257/2010 page 2 of 13

3. As the factual matrix gets further uncurtained, the appellant put

forth his claim for appointment to the post in question on the foundation

that after the resignation of Shri Phougat, he deserved to be appointed

inasmuch as the select panel was valid for a period of one year as per the

Ordinance 12 of the respondent-university. The stand of the appellant

before the writ court was that as a vacancy had been caused because of the

resignation of Shri Phougat, he was entitled to be posted in the said

vacancy. Reliance was placed on Instruction of the Government contained

in DOPT OM No. 41019/18/97-Estt. (B) dated 13th June, 2000 which

stipulates that if a vacancy is caused due to death or resignation of the first

selected candidate, the said vacancy could be filled up by the next

candidate.

4. The stand put forth by the writ petitioner was resisted by the

respondent-University contending, inter alia, that the University has not

accepted the Government's instruction and, in fact, in the 88th meeting held

on 27th November, 2006 by the Board of Management, the University had

categorically not accepted the same. It was further contended that as per

the 61st meeting of the Board of Management held on 16th November, 1998,

the wait-listed candidate could be offered an appointment only if the

LPA No.257/2010 page 3 of 13 successful candidate does not join and if the successful candidate joins, the

panel gets lapsed and, therefore, the writ petitioner did not have any right

to advance a claim to join the post solely on the ground that the validity of

the select list was for a period of one year. It was also urged that the

Ordinance 12 was of no help or assistance to the petitioner.

5. The learned Single Judge referring to the factual matrix, the various

resolutions in the field, the Ordinance 12, the Government's Instruction

and certain citations did not find any substance in the petition and

accordingly dismissed the same.

6. Assailing the soundness of the order of the learned Single Judge,

Dr.L.S. Chaudhary, learned counsel for the appellant has contended that

when the panel was valid for one year and a vacancy had occurred, it was

obligatory on the part of the University to post the appellant as he was

No.2 in the select list. It is his submission that the Ordinance 12 should be

given full effect to and injustice should not be allowed to usher in. The

learned counsel for the appellant has highlighted that the learned Single

Judge has erred in relying on the minutes of the 88th meeting of the Board

of Management held on 27th November, 2006 inasmuch as the vacancy in

LPA No.257/2010 page 4 of 13 actuality had arisen. He has commended us to the decisions in A.P.

Aggarwal v. Govt. of NCT of Delhi, (2000) 1 SCC 600 and Malik Mazhar

Sultan & Anr. v. U.P. Public Service Commission and Ors., (2006) 9 SCC

507.

7. Mr.Aly Mirza, learned counsel for the University, supporting the

order of the learned Single Judge, has submitted that the conclusion

arrived at by him to the effect that the panel lapsed after the post was filled

up is flawless. It is proponed by him that once the panel gets exhausted

life cannot be breathed into it unless there is a provision to that effect and

when the University has categorically not accepted the government

instructions to fill up the vacancy caused due to resignation of the first

selected candidate, a mandamus cannot be issued commanding the

respondents to fill up the same by allowing the appellant to join solely on

the ground that the validity of the panel is for one year.

8. The thrust of the matter is whether the appellant has any right in

law for seeking a writ of mandamus to the respondent - University to post

him in the vacancy that has arisen because of resignation of the first

selected candidate. The Ordinance No. 12 of the University lays down that

the panels recommended by a Selection Committee shall be valid for a

LPA No.257/2010 page 5 of 13 period of one year from the date of its approval by the Board of

Management. It is also stipulated therein that the Board of Management,

for reasons to be recorded, can extend the validity of the panel by one

more year. In the case at hand, it is not in dispute that the validity period

of one year was not over. Navin Phougat, who was the first candidate in

the select list had joined and, thereafter he resigned. Thus, the question

that emanates for consideration is whether on his joining, the panel got

exhausted or not. On a perusal of the general conditions incorporated in

the advertisement, it has been stipulated in Clause 11 that the University

may also prepare a panel of candidates keeping in view of the vacancies

that may arise in future. The stand of the University is that as the panel

got exhausted and the University thought it appropriate not to prepare a

panel of candidates and accordingly proceeded to renotify the vacancies.

We may note with profit that though the learned counsel for the appellant

has laid immense emphasis on the said stipulation in the advertisement

yet we have remained unimpressed as that it is only an enabling

stipulation. Nothing is discernible from the material brought on record

that the University has prepared any panel postulating that further

anticipated vacancies shall be filled up. Thus, we are only required to

LPA No.257/2010 page 6 of 13 address whether any right accrued in favour of the appellant when the

first selectee resigned after joining. In this context, we may refer with

profit to the decision in State of Punjab v. Raghbir Chand Sharma and

another, AIR 2001 SC 2900. In the said case the Division Bench of High

Court of Punjab and Haryana concurred with the view of the learned

Single Judge who had directed the State of Punjab that the petitioner

therein was entitled to be offered the post in question as a vacancy had

been caused because of the resignation of the first candidate who had

joined the post and resigned later on. It is worth noting that the post in

question in the said case was for the post of Assistant Advocate General,

Punjab. Their Lordships noted the contentions which we think apt to

reproduce:

"3. ...Strong reliance has been placed by the appellant on some decisions of this Court wherein it has been held that mere empanelment in a select list does not confer upon such a person in the panel any right to get appointed to a post under the State and if for good and valid reason, the State does not choose to appoint the said person in the panel, no right inheres in such a person to seek a mandate from the Courts for an appointment. Per contra, the learned counsel for the first respondent placed strong reliance upon a decision of this Court, to which one of us (Rajendra Babu, J.) was a member, reported in Virender S. Hood v. State Haryana, (AIR 1999 SC 1701), wherein it was held

LPA No.257/2010 page 7 of 13 relying upon the Circular Orders dated 22.3.1957, that when vacancies existing were filled in by appointing candidates recommended by the Public Service Commission, further vacancies arising and available within six months from the receipt of recommendation of Public Service Commission have to be filled up out of the wait list maintained by the Public Service Commission."

After stating the contentions, their Lordships proceeded to state as

follows:

"4. We have carefully considered the submissions of the learned counsel on either side. In our view, the judgment rendered by the learned Single Judge as well as the Division Bench of the Punjab and Haryana High Court cannot be sustained. As rightly contended for the appellant-State, the Notification issued inviting applications was in respect of one post and the first candidate in the select panel was not only offered but on his acceptance of offer came to be appointed and it was only subsequently that he came to resign. With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently. The Circular Orders dated 22.3.1957 in our view, relates to select panels prepared by the Public Service Commission and not a panel of the nature under consideration. That apart, even as per the Circular Orders as also the decision relied upon for the

LPA No.257/2010 page 8 of 13 first respondent, no claim can be asserted and countenanced for appointment after the expiry of six months. We find no rhyme or reason for such a claim to be enforced before Courts,..."

9. Be it noted, Dr. L.S. Choudhary has drawn inspiration from the

decision in A.P. Aggarwal (supra), wherein it has been held thus:

"15. In Virender S. Hooda. v. State of Haryana, (1999) 3 SCC 696 the Haryana Service Commission advertised 12 posts of Haryana Civil Service (Executive Branch). On completion of selection final list was published. Some of the selected candidates did not join and the appellant contended that they should have been considered against the vacancies so arising, depending upon the ranking obtained by the appellants in the competitive examination. They relied on government circulars dated 22.3.1957 and 26.5.1972 according to which the vacancies which arose within six months from receipt of recommendations of the Commission, should be filled up from the waiting list maintained by the Commission.

The writ petition filed by the appellants was dismissed by the High Court in the view that the administrative instructions contained in the circulars could not be enforced. Reversing the decision of the High Court, the Division Bench of this Court observed that the Government ought to have considered the case of the appellants as per the rank obtained by them and the appellants had to be appointed if they came within the range of selection. The Bench pointed out that when those vacancies arose within a period of six months from the date of previous selection, the government circulars were attracted and the view of the High Court that the vacancies arose after selection process commenced had no relevance and they are contrary to

LPA No.257/2010 page 9 of 13 the declared policy of the Government. The Bench observed that the view taken by the High Court that the administrative instructions could not be enforced by the appellants would be looking at the matter from a narrow and wrong angle. The Bench said: (SCC p.699, para 4)

"when a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same".

The ruling will apply on all fours in the present case."

10. The aforesaid decision is distinguishable on facts inasmuch as in the

said case, some of the selected candidates had not joined the post, whereas

in the case at hand, the number one selectee had joined the post and

thereafter resigned. That apart, the said decision has also been

distinguished in Raghbir Chand Sharma (supra) as it pertained to a select

list prepared by the Public Service Commission.

11. In this context, we may fruitfully refer to the authority in Madan Lal

and others v. State of J & K and others, (1995) 3 SCC 486, wherein their

Lordships have opined that even by abundant caution a merit list of more

LPA No.257/2010 page 10 of 13 candidates is prepared but if the requisite vacancies are filled up from the

merit list, the list gets exhausted.

12. The learned counsel for the appellant has commended us to the

decision in Malik Mazhar Sultan & Anr. (supra). On a perusal of the said

decision, we do not find anything that would support the stand of the

appellant.

13. In this regard, we may appositely refer to the decision regarding

right of a candidate of a select list for getting an appointment. The

Constitution Bench in Shankarsan Dash v. Union of India, AIR 1991 SC

1612 has laid down 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

LPA No.257/2010 page 11 of 13 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 165 : (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)."

14. Recently, in State of Orissa & Anr. v. Rajkishore Nanda & Ors.,

AIR 2010 SC 2100, their Lordships have opined as follows:

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

15. In the case at hand, it is perceptible, in the University 88th meeting

DOPT instructions had not been accepted. In fact, there is a categorical

decision not to accept, thus, the University is governed by its own rule and

procedure. That apart, the respondent-University in its 65th meeting of the

Board of Management has clearly stipulated that waitlisted candidate

could be offered an appointment only if the successful candidate does not

LPA No.257/2010 page 12 of 13 join and if the successful candidate joins, the panel gets lapsed. Nothing

has been brought on record to show that once a selected candidate resigns,

and a vacancy is caused, the second person in the waiting list gets a right

for consideration. Once the select list is exhausted, no claim even can be

put forth for consideration.

16. In view of the aforesaid premised reasons, we do not find any merit

in this appeal and, accordingly, the same stands dismissed without any

order as to costs.

                                                  CHIEF JUSTICE




SEPTEMBER 07, 2011                                SANJIV KHANNA, J.
Ks/dk




LPA No.257/2010                                               page 13 of 13