Orissa High Court
Kshiroda Prasad Nayak vs Vrs on 19 March, 2021
W.P.(C) N0. 29273 of 2019
9 19.3.2021. Present:
Shri S.K.Mishra, J
Miss Savitri Ratho,J
Kshiroda Prasad Nayak ...... Petitioner
- Vrs-
Union of India and others ....... Opp.Parties
For the Petitioner : Mr. Sanjib Mohanty, B.Biswal,
P.K.Harichanda & A Parija
For Opp.Parties : Mr. Prasanmna Kumar Parhi,ASG, and
Mr. Chandrakanta Pradhan, CGC
In this writ petition , the Petitioner assails the correctness of
the judgment dated 22nd January, 2019 delivered by the Central
Administrative Tribunal, Cuttack Bench, Cuttack in O.A.
No.260/773/2015 rejecting the application of the Petitioner for a
direction to appoint him as Gramina Dak Sevak Mail deliverer/MC,
Kanbageri Block under G. Udayagari.
2. The facts of the case are not disputed. The Petitioner was a
candidate for the post of Gramina Dak Sevak Mail Deliverer (in
short GDSMD), Kanbageri B.O., under G. Udayagairi Sub-division
AKB Office. He along with others applied for selection of the aforesaid
post. Another candidate secured the first position. The said
candidate, who had secured first position joined the post. However,
after some time he resigned and thereafter the Petitioner was called
upon to produce the original documents for verification. At that
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time, the Opposite Party No.4 received an instruction from the
Higher Authority not to proceed with the appointment of the present
Petitioner. Hence he did not issue a letter of appointment.
3. Learned Central Administrative Tribunal, Cuttack Bench,
Cuttack held that the action of the Opposite Party No.4 in issuing a
letter for production of certificate for verification was improper. It
further held that the Petitioner could not produce any rule or
instructions showing that when recruitment is made only one post of
GDS, after joining of the candidate with higher merit, the merit list
shall remain valid and others would be given appointment in the
event of subsequent vacancy. In absence of such instruction, the
action of Opposite Party No.4 to issue a letter date 23.2.2015 will
not be appropriate. Hence, the Tribunal dismissed the application
of the Petitioner.
4. Mr. Sanjib Mohanty, learned counsel for the petitioner, relied
upon the reported case of Dr. Rajalaxmi Beura v. Vice Chancellor,
OUAT & others; reported in 2017 (II) OLR- CUT-923 and
contended that in a similar case a Single Bench of this Court had
directed the appointment a candidate who was placed at Sl. No.4 in
the merit on the resignation of the Sl. No.1, Sl.Nos.2 and 3 having
joined elsewhere. He also relied upon a Division Bench judgment of
this Court in the case of Shri Gagan Behari Pradhan v. State of
Orissa and others reported in 2006(1) OLR 31. Similar view has
been taken by the Division Bench of this Court.
5. However, we rely upon the judgment rendered by the
Hon'ble Supreme Court in the case of State of Orissa and another
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v. Rajkishore Nanda and others; reported in (2010) 6 SCC 777,
we find it appropriate to take note of the exact words used by the
Hon'ble Supreme Court in that case (Pages 782 & 783,
Paras11,12,13,14,15 & 16):-
" 11. It is a settled legal proposition that vacancies cannot
be filled up over and above the number of vacancies
advertised as "the recruitment of the candidates in excess
of the notified vacancies is a denial and deprivation of the
constitutional right under Article 14 read with Article 16
(1) of the Constitution", of those persons who acquired
eligibility for the post in question in accordance with the
statutory rules subsequent to the date of notification of
vacancies. Filling up the vacancies over the notified
vacancies is neither permission only after adopting policy
decision based on some rational", otherwise the exercise
would be arbitrary. Filling up of vacancies over the
notified vacancies amounts to filling up of future
vacancies and thus, not permissible in law.
12. In State of Punjab v. Raghbir Chand Sharma;
(2002)1 SCC 113, this Court examined the case where
only one post was advertised and the candidate whose
name appeared at Serial No.1 in the select list joined the
post, but subsequently resigned. The Court rejected the
contention that the post can be filled up offering the
appointment to the next candidate in the select list
observing as under: (SCC p.115, para 4);
"4..... 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."
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13. In Makul Saikia v. State of Assam; (2009) 1 SCC
386 , 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 were filled up,
therefore, appointments beyond the number of posts
advertised would amount to filling up future vacancies"
and the said course is permissible in law.
14. A person whose name appears in the select list
does not acquire any indefeasible right of appointment.
Empanelment at the bet 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.
15. A Constitution Bench of this Court in Shankarsn
Dash v. Union of India; (1991) 3 SCC 47 held that
appearance of the name of a candidate in the select list
does not give him a right of appointment. Mere inclusion
of the 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.
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. 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. If the selection process
is over, select list has expired and the appointments had
been made, no relief can be granted by the court a belated
stage."
6. Thus in view of such settled principle of law as enunciated by
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the Hon'ble Supreme Court, we are of the opinion that the
petitioner's claim is without merit and the judgment of the learned
Single Judge and the Division Bench of this Court cited (supras)
are not good law. Hence, the Writ Petition is dismissed.
Urgent certified copy of this order be granted on proper
application.
.........................
S.K.Mishra,J.
...........................
Savitri Ratho,J.
