Madhya Pradesh High Court
Sunil Kumar Mishra vs The State Of Madhya Pradesh on 9 November, 2021
Author: Vijay Kumar Shukla
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
W.A. No.1020 of 2021
Sunil Kumar Mishra
-Versus-
The State of M.P. and Ors.
--
Shri Vidya Shankar Mishra, Advocate for the appellant.
Shri Swapnil Ganguly, Deputy Advocate General for the
respondents/State.
_______________________________________________________
CORAM :
Hon'ble Shri Justice Ravi Malimath, Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
[Hearing convened through virtual/physical modes]
JUDGMENT
(Jabalpur, dtd.09.11.2021)
Per : Vijay Kumar Shukla, J.-
The present intra-court appeal has been filed under
Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand
Nyaypeeth to Appeal) Adhiniyam, 2005, being aggrieved by the
order passed by the learned Single Judge in W.P. No.20650 of 2021
(Sunil Kumar Mishra vs. The State of M.P. and others], dated 28-9-
2021, whereby the writ petition preferred by the writ-
petitioner/appellant has been dismissed.
2. The writ-petitioner/appellant [hereinafter referred to as
"the appellant] has filed the writ petition before the learned Single
Judge, whereby he has sought for a direction to the respondents to
consider the name/candidature of the appellant for selection, as his
name had been initially kept in the waiting list and thereafter, since
the candidates kept above him have voluntarily denied to join,
therefore, his name should be affirmatively considered for selection
on the post of Pharmacist (Ayush) since the post is still vacant.
3. The appellant had applied for the post of Pharmacist
(Ayush) in the Government Ayurvedic Colleges in the State. The
final select list was published on 18-6-2012 in which the name of
the appellant finds place at serial number 3, whereas the names of
Ramkishore Mishra and Sandeep Kumar Garg were put in the first
and second waiting respectively. Thereafter, entire selection was
cancelled by the State Government. Aggrieved by which the
selected candidates, namely, Dilip Kumar Mali and Jitendra Kumar
Tripathi challenged the cancellation before this Court in the writ
petition forming the subject-matter of W.P. No.2077 of 2013. The
writ petition was allowed and the learned Single Judge after setting
aside the cancellation order directed the State to allow the writ
petitioners to join their services.
4. Aggrieved by the said order the Department challenged
the same in the Writ Appeal No.949 of 2018 [State of M.P. and
another vs. Jitendra Tripathi and others], which also faced dismissal
by order dated 23-11-2019 passed by a Division Bench of this Court
affirming the order passed by the learned Single Judge.
5. Subsequent to the aforesaid order, appointment orders
were issued to the selected candidates directing them to complete
the formalities, vide letter dated 05-11-2020. However, Jitendra
Kumar Tripathi (selected candidate No.2) failed to appear for
counselling before the Selection Board of the respective Ayurvedic
College, as a result, the said post remained vacant.
6. The contention of the appellant that he be appointed on
the said vacant post, as the candidates whose names featured before
him in the waiting list, have voluntarily waived their chances of
selection as they had given their notarized affidavits, has no
substance.
7. The learned counsel appearing for the respondents
submitted that the validity of the select list was for one year only
and the issue whether a person appearing in the waiting list is
entitled for appointment after expiry of the statutory period of select
list/waiting list, has been considered and dealt with in W.A. No.745
of 2017 wherein by order dated 18-12-2017 this Court has
observed :
"Needless to say, the selection process was initiated in
pursuance of advertisement issued in the year 2008 and
the candidates were appointed way back in 2011. Mere
fact that a post is lying vacant is not a ground on the
basis of which, the appellant can seek a mandamus to
seek appointment. Reference may be made to a recent
judgment of the Supreme Court in Kulwinder Pal Singh
vs. State of Punjab and others (2016) 6 SCC 532
wherein the following observations have been made :-
"10. It is fairly well settled that merely because the
name of a candidate finds place in the select list, it
would not give him indefeasible right to get an
appointment as well. The name of a candidate may
appear in the merit list but he has no indefeasible
right to an appointment (vide Food Corporation of
India vs. Bhanu Lodh (2005) 3 SCC 618, All India SC
& ST Employees' Assn. v. A. Arthur Jeen (2001) 6
SCC 380 and UPSC v. Gaurav Dwivedi (1999) 5 SCC
180).
11. This Court again in State of Orissa v. Rajkishore
Nanda (2010) 6 SCC 777, held as under :- (SCC
p.783, paras 14 and 16)
"14. A person whose name appears in the select list
does not acquire any indefeasible right of
appointment. Empanelment at 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.
16. A select list cannot be treated as a reservoir for
the purpose of appointments, that vacancy can be
filled up taking the names from that list as and when it
is so required."
12. In Manoj Manu vs. Union of India (2013) 12 SCC 171,
it was held that (SCC p.176, 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..............."
The appellant is in wait list of the candidates. Such
candidate has no right to seek direction to appoint him
more so when parity is sought with a reserved category
candidate."
8. In the present case, the appellant was a waiting list
candidate and he remained as a silent spectator for all time. It was
only when the selected candidates did not join on the said post then
he preferred the writ petition for a stale claim. The validity of the
select list has already expired and this Court has already held that a
waiting list candidate has no legal right to seek direction for
appointment after expiry of validity period of the select list.
9. We do not find any illegality in the impugned order
passed by the learned Single Judge declining the relief claimed by
the appellant and same is impeccable.
10. Accordingly, the writ appeal being sans substance, is
dismissed. No order as to costs. Pending interlocutory application,
if any, also stands disposed of.
(Ravi Malimath) (Vijay Kumar Shukla)
Chief Justice Judge
ac.
Digitally signed by AJAY KUMAR CHATURVEDI
Date: 2021.11.12 14:27:07 +05'30'
