Waiting List Can't Be Used As 'Reservoir' To Fill Posts Falling Vacant Due To Resignation Of Selected Candidate: Jammu & Kashmir High Court

The Division bench comprising Chief Justice Pankaj Mithal & Justice Moksha Kazmi passed the ruling in an appeal filed by the UT government challenging the single judge verdict wherein the writ court had directed the state authorities to operate the waiting list of the Junior Engineers (Civil) for the period of one year so as to accord appointment to the candidates from the waitlist to the said post against the vacancies falling vacant due to resignation of the candidates who had joined post their selection.

Setting aside the single-judge judgment, a division bench noted that the select/waiting list prepared may remain operative and valid for a period of one year but that would only be for a limited purpose of appointing the selected/wait list candidates on the vacancies which remain unfilled due to non-joining of the selected candidate for one reason or the other.

Allowing the appeal, the court said that only the number of vacancies notified can be filled up through the process of selection and from the select list so prepared. The authorities have no right to fill up any vacancy over and above the vacancies notified as it would amount to filling up of a fresh vacancy, thereby encroaching upon the right of all those persons who may become eligible after the notification of the vacancy, the bench observed.

While upholding the arguments of the state, the court placed reliance on a three judge bench Supreme court judgement in Rakhi Ray & Ors. vs. High Court of Delhi & Ors 2010 wherein the apex court categorically held that

"Vacancies cannot be filled up over and above the number of vacancies advertised as the recruitment of the candidates in excess of the vacancies notified is denial and deprivation of the constitutional right under Article 14 read with Article 16 of the Constitution of those persons who acquired eligibility for the posts in question in accordance with the statutory rules subsequent to the date of notification of the vacancies. Filling up of the vacancies over and above the notified vacancies amounts to filling up a future vacancies which is not permissible in law. In the event, the vacancies notified stands filled up, the process of selection comes to an end and the waiting list cannot be used as a reservoir."

The court underscored that the vacancy which has been advertised and on which a selected candidate has been appointed, if resigns, subsequently would lead to the exhaustion of the select panel and no one from the said panel can be pushed up for appointment.

"It has also been clarified that the vacancy which has been advertised and on which a selected candidate has been appointed if resigns subsequently would lead to the exhaustion of the select panel and no one from the said panel can be pushed up for appointment. In other words, such a vacancy has been described as a fresh vacancy to be filled up after a new advertisement and a fresh selection thereof" the court observed.

Declining the argument of the counsel that joining of a selected candidate against the vacancy advertised and thereafter on his resignation the vacancy occurring would be a "dropout vacancy" rather than a fresh vacancy, the court observed that Rule 14(7) of J&K Civil Services Decentralization and Recruitment Rules, 2010 is very material which provides for the preparation of the wait list which has to remain in force for a period of one year from the date of the original select list and has to be sent to the requisitioning authority for consideration against the "dropout" vacancies.

The bench underscored that the plain reading of the last clause of the aforesaid Rule is clear enough to show that the phrase "dropout" vacancies has to be used narrowly in context with the vacancies remaining unfilled due to non-joining of the selected candidates for any reason.

The provision is clear enough to establish that no candidate from the select list or waiting list shall be appointed on any vacancy which is caused due to resignation of a selected candidate joining the post, the court noted.

"In view of the aforesaid facts and circumstances, we are of the firm opinion that the learned Single Judge manifestly erred in law in allowing the writ petition directing the respondents to operate the waiting list of the Junior Engineers ( Civil ) even against the posts falling vacant due to resignation of the candidates selected and joining within a period of one year from the date of the preparation of the said select list," the court concluded while setting aside the single bench judgement.

Case Title : State of JK & Anr. V Danish Zia Bhat & Ors.

Citation: 2022 LiveLaw (JKL) 50