Shailesh Sharma v. State of Chhattisgarh & Another), whereby
Case Details
1 2025:CGHC:8625-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WA No. 124 of 2025 Sailesh Sharma S/o. Prahlad Sharma Aged About 32 Years R/o. Village And Post - Taga, Tahsil - Akaltara, District - Janjgir-Champa (C.G.), District - Janjgir-Champa (C.G.) ... Appellant(s) versus 1. State of Chhattisgarh Through The Secretary, Urban Administration And Development Department, Mantralaya, Mahanadi Bhawan, Atal Nagar, Raipur, Dist. Raipur (C.G.) 2. Chairman Chhattisgarh Professional Examination Board, Raipur, Dist. Raipur (C.G.) ...Respondent(s) For Appellant For Respondent/State : : Mr. Rajeev Kumar Dubey and Ms. Maya Chaturvijani, Advocates. Mr. S.S. Baghel, Deputy Government Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble
Legal Reasoning
Shri Ravindra Kumar Agrawal , Judge Per Ramesh Sinha , Chief Justice Judgment on Board 19 .02.2025 BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.02.20 10:25:09 +0530 1. Heard Mr. Rajeev Kumar Dubey, learned counsel for the appellant along with Ms. Maya Chaturvijani, learned counsel. Also heard Mr. S.S. Baghel, learned Deputy Government Advocate, appearing for the State. 2 2. The present intra Court appeal has been filed by the appellant against the order dated 29.08.2024 passed by the learned Single Judge in WPS No. 3709 of 2019 (Shailesh Sharma vs. State of Chhattisgarh & Another), whereby the learned Single Judge has
Decision
dismissed the writ petition filed by the appellant/writ petitioner herein. 3. Brief facts of the case are that an advertisement for 57 posts of Sanitary Inspector was issued by the Directorate, Urban Administration Department, Chhattisgarh on 16.02.2018 pursuant to the Chhattisgarh Nagar Palik Nigam (Adhikariyon Aur Karmchariyon ki Niyukti tatha Sewa ke Nibandhan evam Shartein) Niyam, 2018 (for short, ‘Rules of 2018); Chhattisgarh Nagarpalika Sewa (Vetanman evam Bhatta) Niyam, 1967 (for short, ‘Rules of 1967’); Chhattisgarh Nagarpalika Karmchari (Bharti tatha Sewa Shartein) Niyam, 1968 (for short, ‘Rules of 1968’) and subsequent circulars and instructions issued from time to time. The last date for submission of the online application form was 07.03.2018. The appellant was participated in the written examination conducted by the Chhattisgarh Professional Examination Board on 17.09.2018. A provisional select list was published by respondent No. 1 on 05.10.2018 and thereafter, Model Code of Conduct for State Assembly elections came into force from 06.10.2018 till 24.12.2018. Chief Election OfÏcer vide order dated 22.11.2018 granted permission to the State to fill up the posts of Sanitary Inspector during the currency of Model Code of Conduct. Respondents called candidates for verification of documents and thereafter, a list of eligible and ineligible candidates was published. Respondent No. 1 vide order dated 08.01.2019 stayed the selection process for the posts of Accountant, Sanitary Inspector & Revenue 3 Inspector. WPS No. 2403 of 2019 was filed before this Court which was disposed off on 03.04.2019 and respondents therein were directed to complete the selection process within 90 days from the date of receipt of a copy of such order. On 07.05.2019, a decision was taken to issue appointment orders to the selected candidates within 30 days. The department issued appointment orders in favour of Ajay Barik and Durgesh Kumar Sahu on 31.05.2019 & 02.08.2019, respectively. Name of the petitioner was not in the select list and no waiting list was prepared by the department, but the petitioner is claiming appointment to the post of Sanitary Inspector on the ground that out of a total of 57 posts, 55 posts are still lying vacant. 4. Learned counsel for the appellant submits that as the 55 candidates were declared ineligible for the appointment, the respondent-State should have to proceed to for the document verification from the list of eligible candidates who have clear the written-test and were fully eligible for consideration of their candidature for the process of document verification at least to the tune of 1:2 ratio as the Rules of 2018 and thereon. He also submits that the respondent-Department had refused to recruit the petitioner into the said post inspite of the fact that the merit list was alive and valid. According to the advertisement, the validity of selection list was for the one year which was further extended for the period of 06 months upto 10.04.2020. Being aggrieved by the said fact, the petitioner had approached this Court by way of filing writ petition bearing WPS No. 3709 of 2019 and on 29.08.2024, the learned Single Judge dismissed the said petition on the ground that as there is no provision to prepare waiting list in the relevant recruitment rules governing the appointment of the 4 petitioner, therefore, the petitioner has no vested right to be appointed into the said post of Sanitary Inspector. 5. It is further submitted by the learned counsel for the appellant that the learned Single Judge in the instant case has based the finding on the fact that there is no vested right for the person in waiting list to get appointment, however, the case remains that the person who were reflected in the selection list were not having the requisite qualification to get appointed, therefore, the duty was upon the respondent authority to include the person having the requisite qualification into the select list. Therefore, the action of the respondent authorities is totally illegal and perverse which requires intervention of this Court. He would submit that the learned Single Judge while considering the case has failed to consider various relevant points. The department and respondent authorities acted in total contravention of law governing the field and the appellant cannot be made liable to suffer for fault on part of the respondent State authorities. 6. Learned counsel for the appellant states that for appointment of Sanitary Inspector, the respondent have committed grave error by sending name of candidates as per order of merit of marks obtained and not by verifying the eligible candidates in compliance of mandate under the Rules of 1968 and Rules of 2018. Thus, the fallacy has resulted in debarring and ousting of eligible candidates by keeping in list the in eligible candidates. He further states that the Rules of 1968 as amended by notification dated 10.03.2017 mandates sending the name of selected candidates. Thereby in total of 23 post for Municipal Council and Nagar Panchayat only one appointment was made and despite the appellant 5 being eligible the remaining 22 posts are lying vacant. Similarly for recruitment in Municipal Corporation as per the governing Rules of 2018 which mandates sending names twice the number of vacancy which also has not been complied with. 7. It is further contended by the learned counsel for the appellant that the learned Single Judge ought to have considered the fact that the person who were having the requisite qualification can only be placed into the final selection list and it is not open for the respondent authorities to arbitrarily place the persons into final selection list according to their whims and fancies. He also contended that the learned Single Judge has failed to consider the judgment rendered by the Hon’ble Supreme Court in Mukul Kumar Tyagi vs. State of U.P., reported in (2020) 4 SCC 86, whereby the Hon’ble Supreme Court in paragraph 68 held as under: “68. In the process of recruitment, the Commission included the candidates in the select list, who claimed equivalent qualification to CCC certificate. Without any scrutiny, the inclusion of persons with whom there was no satisfaction by the Commission that their qualification was equivalent to CCC is nothing but permitting unqualified persons to be included in the select list. We, thus, conclude that neither was there any criteria or guidelines framed by employer or the recruitment agency to determine the equivalence nor any exercise was conducted by the Commission during the process of recruitment and without there being scrutiny of the equivalent qualification claimed by 6 several candidates, their names were included on the basis of self-certification. The Division Bench of the High Court in its impugned judgment [Deepak Sharma vs. State of U.P. Special Appeal No. 585 of 2018, order dated 09.05.2019 (All)] has not overturned the findings of the learned Single Judge that neither was there a criterion nor any scrutiny was undertaken by the Commission in the recruitment process. The Division Bench relied on self-certification by the candidates regarding equivalence of their qualification………….” Therefore, from the reading of above judgment it is very much clear that the employer has duty to scrutinize that whether the candidates have required qualification before putting them into the selection list. 8. Learned counsel for the appellant would submit that the appellant has the requisite qualification, therefore, he must has been placed in the waiting list at the first place and he can only be replaced by the person having the requisite qualification. He further submits that the appellant where meritorious and eligible for appointment to the post of Sanitary Inspector and he ought to has been appointed looking to his overall merit and rank in his particular category. He also submits that no waiting list was prepared which is contrary to Chhattisgarh Municipal (Executive/Engineering/Health) Services, Recruitment & Conditions of Service of Rules, 2017 (for short, ‘Rules of 2017’) which deals with the procedure of recruitment. He argues that Rule 12 of the Rules of 2017 deals with a list of candidates recommended by the Committee. Sub-Rule (4) expressly states that “A select list for each category shall be prepared 7 by the Commission for filling the vacant posts, for such categories a waiting list shall also be prepared in which minimum one name and maximum names up to 25% of the vacant posts shall be included. The validity of the list shall be for one and half year from the date of issue of such select list.” He further argues that there were 57 posts of Sanitary Inspector, but only 02 candidates were appointed by respondent No. 1 and no waiting list was prepared. He also argues that according to the Rules of 2017, a select list of 114 candidates ought to have been prepared by the respondents. He contends that the appellant in the overall merit list as well as the category-wise merit list, therefore, the authorities should have considered his claim for appointment. Hence, the order passed by the learned Single Judge dated 29.08.2024 is untenable in the eyes of law and deserves to be quashed. 9. On the other hand, learned State counsel submits that the learned Single Judge after considering all the aspects of the matter has rightly dismissed the writ petition filed by the appellant/writ petitioner, in which no interference is called for. He further submits that the advertisement dated 16.02.2018 was specifically issued in terms of Rules of 2018; Rules of 1967 and Rules of 1968 and there is no mention in the Rules of 2017 as relied on by the appellant. He would submit that there were a total of 57 posts of Sanitary Inspector in various Municipal Corporations and Municipalities out of which 38 posts were reserved for the UR category; 11 posts for the ST category; 3 posts for the SC category and 5 posts for the OBC category. He also submits that the reservation for women was as follows: 1 post under the UR category and 1 post under the ST category. He argues that the appellant was not in a position to secure appointment 8 as his position in the overall merit list was much below. He further argues that according to the Rules of 2018, there is no provision to prepare a waiting list. He has referred to the judgment rendered by the Hon’ble Supreme Court in the matter of Vallampati Sathish Babu vs. State of Andhra Pradesh & Ors., reported in (2022) 13 SCC 193 before the learned Single Judge, wherein Hon’ble Supreme Court held that if there is no such provision in the rules, there is no need to prepare wait list. 10. We have heard learned counsel for the parties and perused the impugned judgment and materials available on record. 11. In the present case, there were 57 posts of Sanitary Inspector according to the advertisement dated 16.02.2018 and number of vacancies for each category has already been mentioned in the above paras. The position of the appellant is also described above. In the Rules of 2017, cited by appellant, there is a provision to prepare a wait list according to Rule 12(4) of the Rules of 2017. But, the advertisement was not issued according to those rules and the same is evident from the advertisement. The advertisement was issued according to the Rules of 2018, Rules of 1967 and the Rules of 1968, therefore, the contention made by the learned counsel for the appellant regarding the preparation of the wait list is misconceived. 12. The learned Single Judge also relied on the judgment passed by the Hon’ble Supreme Court in the matter of Vallampati Sathish Babu (supra), in which Hon’ble Supreme Court had categorically held that in the absence of any provision for the preparation of a wait list, a candidate claiming to be next on the merit list cannot be granted appointment. 9 Relevant paras of the aforementioned judgment are reproduced herein below:- “15. On a fair reading of Rule 16 of the 2012 Rules read with the Guidelines referred to hereinabove, 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 sub-rule (5) of Rule 16 of the 2012 Rules. 16. In the present case, the final selection list of 33 candidates was prepared. Thereafter all the selected candidates were called for counselling, but one of the candidates did not report for counselling. The aforesaid event took place after the final selection list was prepared and published. As there was no requirement of preparation of a waiting list, the appellant claiming to be the next in the merit cannot claim any appointment as his name neither figured in the list of the selected candidates nor in any waiting list as there was no provision at all for preparation of the waiting list. Sub- rule (5) of Rule 16 is the feat Therefore, the post remained unfilled due to one of the candidates in the final list did not appear for counselling and/or accepted the employment. Hence, that post has to be carried forward for the next recruitment. 17. 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 10 herein, thus, had no right to claim any appointment to the post which remained unfilled. 18. In the present case, the first provisional list was published on 1-12- 2012. Thereafter, a revised provisional list was published on 12-12-2012 and subsequently a final selection list was published on 25-12-2012 of 33 selected candidates and the candidate, who did not appear for counselling was one of the candidates in the final selection list dated 25- 2-2012. Therefore, once there was no provision for waiting list, the post, which remained unfilled due to one of the candidates in the final selection list not appearing for counselling will have to be carried forward to the next recruitment as per sub-rule (5) of Rule 16. 20. An identical question came to be considered by this Court in Suresh Prasad. In the said decision, it is specifically 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 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. The aforesaid decision of this Court has been subsequently followed by the Andhra Pradesh High Court in Samiulla Shareef.” 13. While passing the impugned order learned Single Judge held that the name of the appellant where not in the select list and further the fact that the no wait list was prepared as there is no provision under the Rules and further considering the law laid down by the Hon’ble Supreme Court 11 in the matter of Vallampati Sathish Babu (supra), learned Single Judge has rightly dismissed the writ petition. 14. The judgment relied by the learned counsel for the appellant is not applicable in the present case. 15. Considering the pleadings made in writ appeal, submissions advanced by the learned counsel appearing for the parties and also considering the findings recorded by the learned Single Judge while dismissing the writ petition filed by the appellant/writ petitioner, we are of the considered opinion that the learned Single Judge has not committed any illegality, irregularity or jurisdictional error warranting interference by this Court. 16. Accordingly, the present writ appeal being devoid of merit is liable to be and is hereby dismissed. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Chief Justice Judge Brijmohan