04 May 2121

The persons who are in the waiting list have a limited right to claim appointment against the post which were advertised and in case of non-joining of candidates - Bombay High Court

Case : Angad Dnyanoba Shitale and Ors. v. State of Maharashtra and Ors. Writ Petition No. 11843 of 2017 With Civil Application No. 5428 of 2020

Court : Bombay High Court

Bench : Justice S. V. Gangapurwala & Justice Shrikant D. Kulkarni

Decided on : 04 May 2121

Relevant Statutes

Article 226 of the Constitution of India.

Brief Facts and Procedural History

1. For the 947 posts of Technician-III, the advertisement was issued by Respondent No. 2 & 3 and as per the advertisement, the select list and waitlist would remain in force for one year from the date of publication. Out of 947 posts, 473 posts were reserved for general (Non-Pragat Kushal) and the remaining 474 posts were reserved for a special category (Pragat Kushal).

2. The petitioners had applied for the said posts and their names appeared on the waiting list.

3. Respondent No.2 and 3 published one notification. According to clause 8 of the notification, if the candidates from the select list are found disqualified during the course of the document verification process, the candidates from the waiting list would be considered.

4. At the time of the document verification process out of 947 selected candidates, 166 candidates were found ineligible and thus disqualified. Some of the candidates from the select list had refused to join the post. As such there are 215 posts that fell short to complete the recruitment of 947 posts.

5. In such eventuality and as per the advertisement, the petitioners who are in the waiting list are required to be considered for appointment. However, the respondents did not consider the name of the petitioners for an appointment.

6. Therefore, the petitioners approached the Bombay High Court before the expiry of a waiting list.

The Issue of the Case

Whether, the petitioners, who are on the waiting list, have the legal right to claim the appointment of advertised posts which are vacant?

The Observations of the Court

1. The Honourable Bombay High Court referred to the case of Surinder Singh and Other V/s State of Punjab and Another (1997) 8 Supreme Court cases 488, where it is observed by the Apex Court that the candidates on the waiting list have a limited vested right to the appointment to the extent that when the candidates selected against the existence vacancies do not join for some reasons, the waitlisted candidates would be entitled to appointment.

2. On perusing the document produced by respondents, the court found that the appointment order issued to 9 selected candidates from a category of Pragat Kushal and 24 selected candidates from the general category have not joined their posts of Technician-III. As such 24 + 9 = 33 posts are not filled in by respondents.

3. The Honourable Bombay High Court observed that there was no impediment for the respondents, to fill up those 33 posts from the waiting list candidates obviously as per the seniority and merit and as per the reservation policy. There may not be any difficulty for the respondents, to make such exercise when 33 candidates duly appointed refused to join their posts as per their own document.

The Decision Held by the Court

1. The Honourable Bombay High Court held that the respondent Nos. 2 and 3 shall consider the candidature of petitioners for the appointment on the post of 33 Technicians viz., the post for which appointment orders were issued to the selected candidates and they did not join from the waiting list subject to their seniority and as per reservation policy if they are otherwise found eligible for the said post.

2. The writ petition is disposed of and the Civil application also stands disposed.

3. No order as to costs.

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