In Absence Of Statutory Rules, Employer Not Bound To Offer Unfilled Vacancy To Candidates Not Mentioned In Merit List - SC

Senior Advocate Ms. Mohana appeared on behalf of the Appellant and Mr. Mahfooz Ahsan Nazki appeared on behalf of the Respondents.

The Appellant had participated in the selection process carried out by the Respondents for the recruitment of Teachers. The recruitment process was initiated for 33 notified vacancies. These appointments were governed by the Andhra Pradesh Direct Recruitment for the post of Teachers (Scheme of Selection) Rules, 2012. Rule 16(5) was provided for the preparation of the selection lists, which stated that the number of candidates selected shall not be more than the number of vacancies notified. It also specifically provided that there shall be no waiting list and posts, if any, unfilled for any reason whatsoever shall be carried forward for future recruitment.

The Appellant was placed at the 34^th position, and the Respondents had declared that the candidates up to the 33^rd position in the merit list will be required to appear for counselling.

One candidate who was placed 18^th did not appear for counselling and consequently, one post in the general category remained unfilled. The Appellant made a representation before the Respondents seeking for consideration of his candidature, relying on Paragraph 8 of the Guidelines. On not being given the employment, the Appellant approached the Administrative Tribunal, which held that the Appellant is entitled for employment as per Paragraph 8 of the Guidelines.

Aggrieved with the order of the Tribunal, the State filed a Writ Petition before the High Court, and the High Court set aside the order passed by the Tribunal. Dissatisfied, the Appellant approached the Supreme Court.

The Counsel of the Appellants contended that the selection process cannot be deemed completed until all 33 posts were filled in. Relying on 16(5) of Rules, the Counsel argued that in the present case, the selection was incomplete since one of the candidates did not turn up for counselling and receiving the order of selection and therefore, the appellant being the next candidate as per merit namely, at the 34th position, was entitled to the appointment out of 33 notified vacancies. It was also contended that since no appointment order was issued to the originally selected candidate, it could not be said that the selection process was complete.

The Appellants side also urged that since the Appellant had crossed the age limit for appearing in any further examination, the Court should direct the Respondents to consider the case as a one-time measure.

The Counsel for the state argued that the State has followed procedure provided under Rule 8. Rule 8(g) stated that once the final selection list is published, there can be no waiting list. It was submitted that the other candidate failed to appear for the counselling only after the final selection list was published, and by virtue of Rule 8(g), no appointment order was issued in favour of the Appellant.

On a fair reading of Rule 16 with the Guidelines, the Court held that once the final selection list is prepared, there shall be no waiting list and posts, if any, are unfilled for any reason whatsoever, shall be carried forward for future recruitment as per of Rule 16(5) of the Rules.

To that end, the Court held that "The appellant could have claimed the appointment to the post which remained unfilled provided there is a provision for waiting list as per the statutory provision. In absence of any specific provision for waiting list and on the contrary, there being a specific provision that there shall not be any waiting list and that the post remaining unfilled on any ground shall have to be carried forward for the next recruitment. The appellant herein, thus, had no right to claim any appointment to the post which remained unfilled."

The Bench further placed reliance on Bihar State Electricity Board Vs. Suresh Prasad & Ors., (2004) 2 SCC 681, where it was held, 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 further 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.

Therefore, the Supreme Court found that the High Court's judgment was in absolute consonance with the relevant statutory provisions, and dismissed the appeal.