By Adv. R. S. Agrawal 

 

 

LIFE of wait list prepared by a selection body is the question, which has been answered by the division bench consisting of the Bombay High Court Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor on March 14, 2024, while deciding a bunch of writ petitions, in which it was asserted quite strongly that the select/wait list in these cases shall be operative indefinitely and will breath its last only once it is exhausted, that is to say, every single candidate borne on such a list is to be offered appointment. The division bench has pointed out that the issue raised is no more res-integra and stands settled by the Supreme Court way back in the year 1994 through the judgement in the case of Gujarat State Deputy Executive Engineers Association v. State of Gujarat & Others – 1994 Supplementary (2)SCC 591. In paragraph 9 of the said judgement the Supreme Court has observed that “9. A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and appointed in the vacancy so caused or if there is some extreme exigency, the Government may as a matter of policy decision pick up persons, in order of merit from the merit list.” “But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound.

 

This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. “If the waiting list in one examination was to operate as one infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The Constitutional discipline requires that this court should not permit such improper exercise of power which may result in creating a vesting interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.” The High Court has stated that it finds itself unable to agree with the submissions made and contentions raised on behalf of the petitioners. Having regard to the relevant factors, the HC has expressed complete agreement with the view taken by the Gujarat HC in decision of the case –Y P Kumpavat & others v. State of Gujarat & Others – 2013 SCC OnLine Gujarat 3279, wherein it has been clearly held that HC, in exercise of its powers under Article 235, can control the manner, method and mode of recruitment of candidates to Group-C and Group-D posts of the District Courts.

 

In the HC’s opinion, the next submission made by the petitioners’ counsel that the prescription contained in Clause 46 of the advertisement cannot be given effect to for the reason that it is contrary to Rule 7 of the Recruitment Rules, is not tenable. The said prescription owes its existence to the general power of control and superintendence vested in the HC over the District Judiciary, which includes control and superintendence over the ministerial staff and servants attached to the establishment of the District Judiciary. Rule 7 not being statutory, as it was part of only a Government Resolution, is always subject to any further prescription which may be made by the HC in respect of the process of recruitment and any conditions of the service of the employee working in the District Courts. Thus, the HC has held that prescription in Clause 46 of the advertisement which provided that the select/wait list will be valid for such period as may be prescribed by the High Court, cannot be faulted with as it was well within the powers of the High Court available under Article 235 to make such prescription even in deviation of Rule 7 of the Recruitment Rules, which are not the rules in the traditional sense of the word; rather part of Government Resolution of December 26, 1957, as amended by subsequent Government Resolution of February 22, 1971.

 

The ground urged on behalf of the petitioners that the decision not to extend life of the select/wait list, as communicated by the Registrar General of this HC vide his letter of November 25, 2021 is without jurisdiction having been taken by the HC’s Judges of the Administrative Committee, though such decision can be taken only by the Full House of the High Court, is also absolutely erroneous. It is thus clear that in case any subject other than the exceptions, is placed before the Committee of Hon’ble Judges on the directions of the Chief Justice for taking decision in a matter, such Committee of Judges is legally competent to take decision and any such decision will be termed to be the decision of the HC in view of the resolution of the Full House of this Court of May 2, 1981. In view of this, the submission merits rejection. There is yet another reason as to why the HC is unable to agree with the submissions made on behalf of the petitioners seeking their appointment on the basis of select/wait list. It was urged by the senior counsel, Dr Sathe appearing for the HC that while requisitioning the vacancies on the basis of which the advertisement of March 28, 2018 was issued, the vacancies available immediately before issuance of advertisement were not calculated correctly and that the list to be prepared in terms of Rule 4 does not reflect the actual vacancies for which selection ought to be held.

 

If such list cannot be said to be actual reflection of the vacancies available , the same may be violative of Article 16 of the Constitution because that may lead to fresh candidates not getting an opportunity to participate in the selection for appointment to public posts or service. In conclusion, the High Court has held that the decision rejecting the prayer for extension of life of the select/wait list prepared on the basis of recruitment Process -2018 does not suffer from any illegality so as to call for any interference by the High Court, in these writ petitions. The HC has also upheld the legality of the Notification of November 29, 2023 issued for commencing fresh recruitment process for appointment to various posts in the District Court establishments in Maharashtra and dismissed these petitions.