State Has Right To Refrain From Preparing Waiting List While Completing Selection Process: Punjab & Haryana High Court

The Punjab & Haryana High Court has held that it is the absolute discretion of the State to prepare a waiting list in a selection process and the Court cannot ask to prepare the same.

Justice Jagmohan Bansal said, "Court cannot ask to prepare waiting list. In the absence of waiting list, court cannot ask the State to fill up vacancy in case any selected candidate does not join. It is a settled proposition of law that it is absolute discretion of employer to specify terms and conditions of selection process. The Courts are not supposed to specify eligibility criteria/qualification or substitute opinion of authorities by its opinion."

Court may interfere if it finds that there is manifest arbitrariness or violation of fundamental rights guaranteed by the Constitution or statutory provisions governing the appointment. Thus, the scope of interference by Courts including Constitutional Courts is very limited, it added.

 The Court summarised the following principles:

(i) The State has right to refrain from preparing waiting list while completing selection process.

(ii) Court cannot ask State to prepare waiting list.

(iii) No candidate after participating in the selection process can challenge the process itself, however, he has right to challenge terms and conditions on the ground of violation of fundamental rights guaranteed by the Constitution of India.

(iv) The State is free to determine selection process, however, it should be just, right and fair otherwise, it would be violative of Article 21 of the Constitution of India.

(v) Court can test validity of any administrative or policy decision on the touchstone of fundamental rights and statutory provisions.

(vi) Legitimate expectation is a part of rule of law.

The Court was hearing a plea of a candidate for Punjab Police, seeking setting aside of clauses  of advertisement  for recruitment of Sub-Inspector, Head Constable and Constable wherein respondent has prescribed that there would be no waiting list and after completion of process, vacancy shall be carried forward for next selection.

 The petitioners further sought direction on the respondents to fill up vacancies arising on account of the selection of 144 candidates as Sub-Inspectors as well as Head Constables.

After hearing the submissions, the Court concluded that "it is absolute discretion of the State to prepare waiting list. Court cannot ask to prepare waiting list. In the absence of waiting list, court cannot ask the State to fill up vacancy in case any selected candidate does not join. It is a settled proposition of law that it is absolute discretion of employer to specify terms and conditions of selection process."

The Courts are not supposed to specify eligibility criteria/qualifications or substitute the opinion of authorities with its opinion. The court may interfere if it finds that there is manifest arbitrariness or violation of fundamental rights guaranteed by the Constitution or statutory provisions governing the appointment. Thus, the scope of interference by Courts including Constitutional Courts is very limited, it added.

Justice Bansal highlighted that it is axiomatic that Courts cannot ask the State to create/abolish posts or formulate/structure/re-structure a cadre. It is within the domain of the executive which as per its financial resources, workload, need of manpower, availability of sources etc. decides.

"Similarly, courts cannot substitute opinion of selection committee or ask the State to make selection in a particular manner or of particular candidate or keep the posts vacant or fill the posts, however, decision of executive can be tested on the touchstone of fundamental rights as well as statutory provisions," added the judge.

Reliance was placed on Bihar SEB v. Suresh Prasad, (2004), where the Supreme Court observed and held that even in case candidates selected for appointment have not joined, in the absence of any statutory rules to the contrary, the employer is not bound to offer the unfilled vacancy to the candidates next below the said candidates in the merit list. It is also held that in the absence of any provision, the employer is not bound to prepare a waiting list in addition to the panel of selected candidates and to appoint the candidates from the waiting list in case the candidates from the panel do not join.

In the present case, the Court noted that the terms and conditions enshrined in the advertisement are verbatim replicas of Standing Order No.3 of 2021 issued by the Director General of Punjab in terms of Sections 4(d) and 45 (g) of Punjab Police Act, 2007.

From the conjoint reading of the Standing Order and advertisement, the Court said that it is evident that in Clause 12.4 of the advertisement, the expression “In case a vacancy remains unfilled, on account of any reason, the same shall be carried forward to the next recruitment” has been inserted beyond the Standing Order. The said expression being contrary to the Standing Order needs to be ignored.

"Clause 10(b) provides that there would be no waiting list. Clause 15 provides that in case a vacancy remains unfilled on account of disqualification of selected candidates in medical examination/character and antecedents verification/verification of education/reservation certificate or due to non-joining of selected candidate(s) or on account of any other reason, after the above mentioned process such vacancies shall be carry forward for next selection," the Court noted.

Justice Bansal said that the State has the right not to prepare a waiting list as it is specifically provided in the Standing Order as well as the advertisement.

"In view of law laid down by Supreme Court in afore-cited judgments, the State has right not to prepare waiting list and this Court cannot ask respondent to prepare waiting list, thus, there is no substance in the argument of petitioners that non-preparation of waiting list is bad in the eye of law. There is no infirmity in the action of respondent warranting interference of this Court, thus, impugned clause 10(b) is valid," it observed.

The Court further noted that the names of 144 candidates figured in the selection list of Sub-Inspectors as well as Head Constables.

"144 candidates were expected to join more coveted post of Sub-Inspector. There was no question for them to come forward for medical examination and other processes. The Clause 15 provides that a vacancy which remains vacant on account of reasons mentioned therein or any other reason after the processes mentioned in the advertisement shall be carried forward. On account of selection for the post of Sub-Inspector, there was no reason for aforesaid 144 candidates to complete the selection process qua Head Constable," it noted.

While allowing the plea, the Court directed the State to "consider 144 candidates for the post of Head Constable who are holding rank beyond 787."

Mr. Deepak Malik, Petitioner in person.

Mr. Anurag Goyal, Amicus Curiae.

Ms. Anu Chatrath, Addl. AG, Punjab.

 LOVEPREET KUMAR AND ORS V. STATE OF PUNJAB AND ORS

2024 LiveLaw (PH) 195

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