Davender Kumar vs Chairman And Managing Director ...
2013 Latest Caselaw 5203 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 3506/2011
%                                           13th November, 2013

DAVENDER KUMAR                                            ......Petitioner
                          Through:       Mr. M.S.Jadhav, Adv.


                          VERSUS

CHAIRMAN AND MANAGING DIRECTOR M/S DELHI TRANSCO
LTD.                                     ...... Respondents

Through: Ms. P.L.Gautam, Adv.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Petitioner seeks the relief of being appointed by promotion to the post

of Junior Engineer (Electrical) w.e.f November, 2009 on the ground that

petitioner was a successful candidate in the selection process pursuant to the

employment notice dated 20.8.2007. As per the departmental examination

held on 16.4.2008 for the subject notice a merit list of 104 candidates was

prepared on 2.5.2008. Petitioner was placed at serial no. 32 in the merit list.

Petitioner accordingly claims entitlement to appointment.

2. In my opinion, the reliefs prayed for in the writ petition cannot

be granted for two reasons. Firstly, even if there are more number of people

in the panel list than the posts, once the necessary number of advertised

posts are filled in, the panel exhausts itself. There is no right in the wait

listed candidates in the panel once the number of posts which are advertised

are filled in. In the present case, there is no averment in the writ petition that

all the posts which were advertised pursuant to the notice dated 20.8.2007

have not been filled in. Petitioner only states that although his name appears

at serial no. 32, in the merit list, yet in spite of repeated communications and

reminders, he was not given the appointment. It has been held by a Full

Bench of this Court in the case of Maninder Kaur Vs. Delhi High Court &

Ors. (1995) 57 DLT 288 (FB) that if the necessary number of persons join in

the posts which are advertised, the other persons in the panel no longer have

a right to be appointed and such wait listed candidates' right come to an end

once all the posts are filled in. The relevant paras of the judgment of the

Full Bench in this regard read as under:-

"36. The office memorandum dated 8th February 1982 is Annexure P.4 to the writ petition of Malkhan Singh. The said memorandum has also been reproduced in the decision of the Supreme Court in Prem Parkash's case. A perusal of the said memorandum shows that it is applicable in a case where a person is declared successful according to merit list of selected candidates which is based on the declared

number of vacancies. The responsibility vests on the appointing authority to appoint such a person even if number of vacancies undergo a change after his name has been included in the list of selected candidates. It is thus evident that if a candidate has not been selected against the declared number of vacancies no right flows to him on the basis of the aforesaid Memorandum. Mr. Malkhan Singh had applied against one post reserved for scheduled caste. For that post Mr. Padam Singh was selected, recommended and ultimately appointed. Likewise, the declared number of vacancies when Mr. Sanjay Kaul applied were four which were reserved for scheduled castes and scheduled tribes It was notified in the advertisement that these vacancies shall be filled from general category candidates in the event of suitable candidates from reserved category were not available. Only one candidate Mr. L.D. Maul belonging to scheduled castes community was found suitable. No other candidate from reserve category was found suitable. The High Court, however, prepared a panel of six candidates of general category. The name of Respondent Nos. 9, 7 and 8 were at Serial No. 1,2 and 3 respectively in the panel prepared in 1988. Mr. Sanjay Kaul was at Serial No. 6 on the panel. There were also other advocates at Serial No.4 and 5 of that panel. Against the four declared number of vacancies, one from scheduled caste community and three from general category were selected. Mr. Kaul cannot claim right to the appointment against a future vacancy. In case the contention that the entire panel is to be exhausted irrespective of the number of vacancies which may have been notified for selection is accepted, it may lead to continuing the panel in perpetuity which would be arbitrary and would infringe Article 14 and 16 of the Constitution thereby depriving other eligible candidates for being considered for public employment. In this regard we may also notice a recent decision of the Supreme Court in the case of Gujarat State Deputy Executive Engineers' Association Vs. The State of Gujarat & Ors. (1995)ILLJ1047SC . The Apex Court has held that a candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. The effect of making appointments of candidates from the waiting list on candidates who become eligible for competing for vacancies available in future, was expressed by Supreme Court in the following words -

"Awaiting list prepared .in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, Therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Govern- ment may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as arid when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service."

37. It is also well settled that empanelment gives no right of appointment. The Supreme Court in the case of State of Bihar & Ors Vs. The Secretariat Assistant Successful and Examinees Union 1986 & Ors. AIR1994SC736 has held -

"It is now well settled that a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment and by itself does not amount to selection or create a vested right to be appointed unless relevant service rule says to the contrary (See : Shankara and Dash V. (1992)IILLJ18SC and Sabita Prasad & Ors. Vs .State of Bihar & Ors - AIR1992SC243 . We are, Therefore, of the opinion that the directions given by the High- Court for appointment of the empanelled candidates according to their position in the merit list against the vacancies till 1991 was not proper and cannot be sustained. Since, no examination has been

held since 1987, persons who became eligible to compete for appointments were denied the opportunity to take the examination and the direction of the High Court would prejudicially effect them for no fault of theirs. At the same time, due to the callousness of the State in holding the examination in 1987 for the vacancies advertised in 1985 and declaring the result almost three years later in 1990 has caused great hardship to the successful candidates. The State was expected not to act in such a leisurely manner and treat the matter of selection for appointment to services in such a casual manner. We must record our unhappiness on this state of affairs. There is no justification for holding the examination two years after the publication of advertisement and declare the result almost three years after the holding of the examination and not issuing any fresh advertisement between 1985 and 1991 or holding examination for making selections. We expect the State Government to act in a better manner, atleast hereinafter and since Mr. Rao, the learned senior counsel has shared our concern and assured us of advising the State Govern- ment accordingly, we say no more on that aspect at this stage."

38. The decision of the Division Bench in Bhasin's case directing adjustment against future vacancies results in depriving other eligible candidates for being considered for the said vacancies. In our view the ratio of Prem Prakash's case was not correctly applied by the Division Bench. We may also notice that the Division Bench after rightly noticing in Para 89 of the aforesaid report that the principle laid down in Prem Prakash's case will not be attracted seems to have erred in the later portion of the judgment (Para 106) in directing on strength of Prem Parkash's case that candidates once selector and empanelled must be accommodated in future vacancy which came into existence during the pendency of the writ petition. There are reasons for preparing larger panel than the number of vacancies. It is possible that a recommended candidate may not come forth to join the Service or even after selection and recommendation there may be hurdles in his appointment like medical clearance etc. In order to avoid delay in the recruitment, a larger panel is prepared so that person next on the panel can be recommended for appointment. This, however, would not mean that in case the number of selected and recommended candidates to the extent of

the existing vacancies join, the other candidates on panel are required to be adjusted against future vacancies. As held hereinbefore, this would lead to continuing the panel in perpetuity which is neither permissible in law nor in the interest of the Service.

39. It is also to be borne in mind that there must be a judicially enforceable right for the enforcement of which a mandamus lies. The Supreme Court in State of Kerala Vs. A. Lakshmi katty and others, [1987]1SCR136 has held that a person whose name has been recommended for appointment as a District Judge by the High Count under Article 233(1) has no legal right to the post nor was the Governor bound to act on the advise of the High Court and, therefore ,he could not ask for mandamus. The existence of a right is the foundation of the jurisdiction of a court to issue a writ of mandamus. In this view too the law the petitioners have no right to ask for mandamus for their appointment as ADJ."

3. In view of the ratio in the case of Maninder Kaur (supra) and

since there is no averment in the writ petition that all the persons in the

vacant posts for whom advertisement was given did not join, petitioner

cannot be appointed merely because he is found in the panel at serial no. 32.

4. Another reason for the petitioner for being disentitled to the

reliefs is that the relief of promotion to the post of Junior Engineer

(Electrical) is, assuming the panel was valid though it is not in view of the

aforesaid judgment in the case of Maninder Kaur (supra), as per the

relevant rules of seniority and promotion as applicable to the respondent, the

validity of the panel is only for one year and six months as per para 17.13.1

of the relevant rules. Petitioner himself has filed a letter of the respondent

dated 1.5.2009 which states that in the relevant period since there was no

vacancy in the promotion quota, petitioner could not be appointed. In the

present case, the panel which was prepared on 2.5.2008 would come to an

end by 2.11.2009, and before this date as there were no vacancies which

could be pointed out by the petitioner existing in the post of Junior Engineer

(Electrical) to which petitioner could be appointed, therefore, even on this

ground petitioner cannot seek the relief of being appointed to the post in

question as during the period of validity of the panel no vacancies existed for

the petitioner to be appointed thereagainst.

5. In view of the above, there is no merit in the petition, which is

therefore dismissed, leaving the parties to bear their own costs.

NOVEMBER 13, 2013                              VALMIKI J. MEHTA, J.
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