Nafr High Court
Case Details
Page 1 of 14 2025:CGHC:27557 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 2570 of 2024 Reserved on : 02.04.2025 Delivered on : 25.06.2025 Smt. Radha Dadsena W/o Shri Mukesh Dadsena, Aged About 35 Years R/o Flat No. Lig-27, Himalayan Heights, Dumartarai, District-Raipur (C.G.) --- Petitioner versus 1 - High Court Of Chhattisgarh Through Registrar General, Chhattisgarh High Court, Bodri, District- Bilaspur (C.G.) 2 - Registrar, Commercial Court (District Leval), Second Floor, Yojna Bhawan, Sector -19, Nawa Raipur, Atal Nagar, District-Raipur (C.G.) 3 - Judge, Commercial Court (District Leval), Second Floor, Yojna Bhawan, Sector-19, Nawa Raipur, Atal Nagar, District-Raipur (C.G.) 4 - President, Selection And Promotion Committee, Commercial Court (District Level), Second Floor, Yojna Bhawan, Sector-19, Nawa Raipur, Atal Nagar, District-Raipur (C.G.) 5 - Member, Selection And Promotion Committee, Commercial Court (District Level), Second Floor, Yojan Bhawan Sector -19, Nawa Raipur, Atal Nagar, District-Raipur (C.G.) --- Respondents with WPS No. 3862 of 2024 Chandrashekhar Kanwar S/o Santosh Kanwar Aged About 30 Years R/o Ward No. 14, Piproud, District Raipur, Chhattisgarh Versus ---Petitioner District Judge, District and Session Court, Rajnandgaon, District Rajnandgaon, Chhattisgarh --- Respondent For Petitioner in WPS No. 2570 of 2024 : Mr. Achyut Tiwari, Advocate. For Petitioner in WPS No. 3862 of 2024 : Mr. Vikash Dubey, Advocate. ARUN KUMAR DEWANGAN Digitally signed by ARUN KUMAR DEWANGAN Date: 2025.06.25 14:43:35 +0530 For Respondent in WPS No. 2570 of 2024 : Mr. Amrito Das, Advocate. For Respondent in WPS No. 3862 of 2024 : Mr. Ashish Tiwari, Advocate. Page 2 of 14
Legal Reasoning
Hon'ble Shri Narendra Kumar Vyas, J. CAV ORDER 1. Since an identical issue and common question of facts are involved in both the writ petitions, they are heard analogously and are being decided by this common order. 2. WPS No. 2570/2024 has been filed by the petitioner on 26.04.2024 assailing memo dated 19.03.2024 (Annexure P/1) issued by respondent No. 2 by which representation of the petitioner regarding her appointment on the post of Assistant Grade-III (Typist/Sell Amin) from waiting list of OBC category, has been rejected. 3. WPS No. 3862/2024 has been filed by the petitioner on 10.07.2024 for issuance of direction to the respondent authorities to appoint him on the post of Assistant Grade-III in Schedule Tribe (Open) category from waiting list. 4. The brief facts in WPS No. 2570/2024 as reflected from the record are that:- (A) Respondent No. 2 issued an advertisement on 16.06.2023 for recruitment on various posts including 2 posts of Assistant Grade-III (Typist/Sell Amin) out of which 1 post was for unreserved category and 1 post for unreserved OBC category. The petitioner being qualified applied and appeared for the skill test for the post of Assistant Grade- III (Typist/Sell Amin) and found 3rd place in the final selection list issued on 30/11/2023, as such her name was at first place in waiting list of unreserved category as well as in the OBC category. Page 3 of 14 (B) The candidate selected in OBC category namely Vikrant Dewangan joined his services but immediately thereafter he selected on the post of teacher, therefore, he resigned from the post of Assistant Grade- III (Typist/Sell Amin) and joined the post of teacher in the Education Department. (C) The case of the petitioner is that as per Rule 20 of the Chhattisgarh District Judiciary Establishment (Recruitment and Conditions of Service) Employees Rules, 2023 (for short “the Rules, 2023”), the waiting list shall remain in force for one year from the date of declaration of final result i.e. the publication of final select list. As the final result was published on 30/11/2023, petitioner made a representation before respondent No. 2 on 15/03/2024 for considering her name from waiting list for appointment on the post of Assistant Grade- III (Typist/Sell Amin) in OBC category which was lying vacant due to resignation of Vikrant Dewangan. Respondent No. 2 rejected the representation of the petitioner vide impugned order dated 19/03/2024 (Annexure P/1) by recording its finding that since the selected candidate has joined on the post of Assistant Grade-III and thereafter he resigned on 08.12.2023, as such, all the posts are filled up, therefore, it cannot be filled up through wait list candidate as after resignation, the vacancy cannot be filled up from wait list candidate. Hence this petition. 5. The brief facts in WPS No. 3862/2024 as reflected from the record are that:- (A) Respondent No. 2 issued an advertisement on 20.06.2023 for recruitment on various posts including 9 posts of Assistant Grade-III Page 4 of 14 out of which, 3 posts were for unreserved candidate, 1 post for unreserved woman, 1 post for special abled person, 1 post for SC unreserved, 1 post for SC (woman), 2 posts for ST, 1 for SC (woman). The advertisement dated 20.06.2023 provides that in case selected candidate after joining resigns from service within one year or he has been removed or death of selected candidate has been taken place or for any other reason then it will be treated as vacant post and will be filled up from waiting list candidate. (B) The petitioner being qualified applied and appeared for skill test of Assistant Grade-III and found 1st place in the final selection list issued on 30/11/2023 and his name was at first place in waiting list of ST category. (C) It is case of the petitioner that the selected candidate in Scheduled Tribe (Open) Category namely Gulshan Porte & Ku. Pratima have resigned on 02/11/2023 & 08/01/2024 respectively from the post, as such, the posts of Scheduled Tribe(Open) Category are lying vacant and as per selection process/appointment scheme prescribed in advertisement on occasion of vacancy arises from resignation or other reasons during one year from appointment the vacancy shall be filled up from waiting list. Therefore, case of the petitioner should have been considered by respondent No. 2 for appointment as wait list candidate. Accordingly, the petitioner moved a representation for appointment on the post of Assistant Grade-III which has not been taken into consideration by the respondent till date. Hence, this petition. 6. The respondents No. 2 to 5 in WPS No. 2570/2024 have filed their return denying the allegation made in the petition mainly contending Page 5 of 14 that the candidate selected under the OBC category namely Mr. Vikrant Dewangan had admittedly joined the post of Assistant Grade- III (Typist / Sell Admin) on 08.12.2023. After discharging his duties on the aforementioned post, he resigned, as such the post under the OBC category stood exhausted. Since all the selected candidates had joined the advertised post, the selection process stood concluded/completed as enunciated in numerous judgments by the Hon'ble Supreme Court, if a selected candidate joins and subsequently resigns from the said post, the consequent vacancy cannot be filled up by selecting a candidate from the waiting list. In other words, the fresh vacancy arising out of resignation of a selected candidate can only be filled up by way of issuing a fresh and appropriate advertisement and would pray for dismissal of the writ petition. 7. The respondent in WPS No. 3862/2024 has filed return denying the allegation made in the petition mainly contending that the present writ petition has been filed by the petitioner essentially being aggrieved by non-consideration of his name for the post of Assistant Grade-III in Scheduled Tribe (Open) category from waiting list on the count that two candidates namely Gulshan Kumar Pone and Ku. Pratima who belonged to Scheduled Tribe (Open) category have, after their appointment in the post, resigned on 02/11/2023 and 08/01/2014 respectively, therefore, the petitioner's candidature ought to have been considered. However, it is settled position of law that no candidate has any claim or right to be appointed over a vacant post and the employer has discretion to choose and not to choose the candidate for filing up
Decision
the post and would pray for dismissal of the writ petition. 8. The petitioner in WPS No. 3862/2024 has also filed rejoinder mainly Page 6 of 14 contending that though there is no indefeasible right of a selected candidate to be appointed but if the employer intends to deny the claim of the petitioner for appointment then it has to assign the reason but in the present case, no such reason has been assigned by the respondent while declining the claim of the petitioner, which is nothing but suffers from arbitrariness, hence, the respondent is required to be directed from this Court to issue appointment order in favour of the petitioner. To substantiate his submission, he would refer to the judgment rendered by Hon’ble the Supreme Court in case of Tej Prakash Pathak & Others Vs. Rajasthan High Court & Others [(2025) 2 SCC 1] wherein it has been held that if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration and would pray for allowing the writ petition. 9. Learned counsel for the petitioner in WPS No. 2570/2024 would submit that one Vikrant Dewangan had joined his service in OBC category and resigned on 09.03.2024, therefore, one post is lying vacant with the respondent. He would further submit that Rule 20 of the Rules, 2023 provides that the waiting list shall be valid for a period of one year from the date of declaration of final result and in the instant case the final merit list and waiting list were published on 30.11.2023 and the petitioner approached the authorities being at 1st position in the waiting list of OBC category on 15.03.2024 i.e. well within the prescribed validity of the waiting list whereas in the earlier appointments, the respondent authorities themselves had followed the provisions of the Rules, 2023 whereas in the instant case, they are not Page 7 of 14 following the provisions of the Rules, 2023 rather they have rejected the claim of the petitioner only on the ground that the vacant post shall not be filled up from the waiting list which is arbitrary and against the provisions of the Rules, 2023. He would further submit that in other District Court establishment, the waiting list candidates are being given appointment against the posts which have become vacant on the count of resignation, death or any other reason if this happened within one year from the date of issuance of final selection list. He would further submit that in the advertisement, there was no such prohibition to issue appointment to the wait list candidate and since in the other District Court Establishment, the same is being followed and even in absence of any prohibition clause in the advertisement, therefore, the petitioner should have also been treated similarly. To substantiate his submission, he has filed the appointment order issued to the waiting list candidates by various District Court Establishment. He would further submit that the respondent without holding proper enquiry, without providing proper opportunity of hearing the petitioner and without taking into consideration the provisions of the Rules, 2023, the impugned order has been passed rejecting the claim of the petitioner which is illegal and arbitrary and would pray for quashing of the same. 10. On the other hand, learned counsel for the respondents in WPS No. 2570 of 2024 denying the submission made by learned counsel for the petitioner would submit that since all the selected candidates had joined the advertised post, the selection process stood concluded/completed as enunciated in numerous judgments by the Hon'ble Supreme Court wherein it has been held that if a selected candidate joins and subsequently resigns from the said post, the Page 8 of 14 consequent vacancy cannot be filled up by selecting a candidate from the waiting list. In other words, the fresh vacancy arising out of resignation of a selected candidate can only be filled up by way of issuing a fresh and appropriate advertisement, therefore, the case law cited by the petitioner runs contrary to the law laid down by Hon’ble the Supreme Court and would pray for dismissal of the writ petition. 11. To substantiate his submission, he would refer to the judgment rendered by Hon’ble the Supreme Court in case of Sudesh Kumar Goyal Vs. State of Haryana [(2023) 10 SCC 54], Virendra Kumar Mire Vs. State of Chhattisgarh & others [2024 SCC OnLine Chh 10551], State of Punjab Vs. Raghbir Chand Sharma & another [(2002) 1 SCC 113], K. Jayamohan Vs. State of Kerela & another [(1997) 5 SCC 170]. 12. Learned counsel for the petitioner in WPS No. 3862 of 2024 would submit that the inaction and apathy on part of the respondent is arbitrary, unfair, unjust and bad in law. He would further submit that the selection process prescribed that on occasion of vacancy arises from resignation of selected candidate, the same shall be filled up from waiting list and would pray for allowing the writ petition. 13. On the other hand, learned counsel for respondent in WPS No. 3862 of 2024 opposing the submission made by learned counsel for the petitioner would submit that it is settled position of law that no candidate has any claim or right to be appointed over a vacant post and the employer has discretion to choose and not to choose the candidate for filing the post and would pray for dismissal of the writ petition. To substantiate his submission, he would refer to the Page 9 of 14 judgment rendered by Hon’ble the Supreme Court in case of Shankarsan Dash Vs. Union of India [(1991) 3 SCC 47], Mohd. Rashid Vs. Local Bodies [(2020) 2 SCC 582], S. Renuka Vs. State of A.P. [(2002) 5 SCC 195], Sudesh Kumar Goyal Vs. State of Haryana [(2023) 10 SCC 54]. 14. I have learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 15. From pleadings of the parties, the point emerged for determination of this Court is:- “Whether the respondents were justified in not considering the case of the petitioners for appointment from the waiting list?” Discussion and finding on Point 16. To determine the issue, this Court has to consider the advertisement issued by the District Court, Rajnandgaon in WPS No. 3862/2024 wherein clause 6 provides issuance of select list and waiting list which reads as under:- “p;u lwph rFkk izrh{kk lwph& dkS’ky@ n{krk ijh{kk esa izkIr vadkas ds vk/kkj ij dkeu esfjV lwph rS;kj dh tkosxhA ftlesa ls vf/kdre vad izkIr djus okys vH;FkhZ dh oxZokj p;u lwph ,oa izrh{kk lwph rS;kj dh tkosxh] tks fd 1%3 ds vuqikr esa gksxh vkSj izrh{kk lwph ifj.kke ?kksf"kr gksus dh frfFk ls ,d o"kZ rd izHkko’khy jgsxhA ;fn p;fur vH;FkhZ] p;fur in dk dk;Zhkkj xzg.k djus ds 01 o"kZ ds Hkhrj in ls R;kxi= nsrk gS] ;k mls ineqDr dj fn;k tkrk gS] e`R;q ;k vU; dkj.kksa ls mDr in fjDr gks tkrk rks mDr in dks fjDr ekurs gq, izrh{kk lwph mYysf[kr vH;FkhZ dks mDr in gsrq ftyk ,oa l= U;k;k/kh’k] jktukanxkao ds }kjk fu;qfDr vkns’k tkjh fd;k tk ldsxkA leku vad izkIr gksus dh fLFkfr esa tUefrfFk ds vk/kkj ij ojh;rk r; dh tkosxh] ftl vH;FkhZ dh tUefrfFk igys gksxh] mUgsa izkFkfedrk iznku dh tkosxhA tUefrfFk Hkh leku gksus ij Lukrd eas izkIr vad dks izkFkfedrk iznku dh tkosxhA” 17. From perusal of this clause, it is quite vivid that if selected candidate Page 10 of 14 after joining the service within year tenders resignation or removed from service, or died or for any other reason, the post is vacant then that post will be treated as vacant post and the appointment order of waiting list candidate will be issued. Whereas in the advertisement in WPS No. 2570/2024 issued by the the Commercial Court, Raipur, no such clause has been mentioned but the respondents have issued waiting list of the candidates. In the return filed by the respondents, they have not stated that mistakenly the waiting list has been issued, as such it cannot be acted upon. In absence of any such clarification, it will be presumed that valid waiting list has been issued, therefore, it is incumbent upon the respondent to justify not acting upon the waiting list by giving explanation. In absence of any explanation for not acting upon the waiting list without any rhyme and reason, it will amount to arbitrariness on the part of the respondent. Thus, the action of the respondent in not considering case of the petitioner suffers from arbitrariness and deserves to be quashed by this Court. 18. Further submission of learned counsel for the respondent is that once the candidate is appointed and even if he resigns or succumb to death, the vacancy will not be treated as vacant post and have cited judgment of Hon’ble the Supreme Court in case of Sudesh Kumar Goyal (supra) is not applicable to the present facts of the case as the rules referred in the judgment clearly provide for not considering the case of waiting list candidates as the notified posts stood filled up after joining of selected candidates and it will not be treated as vacant for whatsoever reason whereas in the present case, no rule has been placed on record by the respondent to justify their action. The Page 11 of 14 respondents in WPS No. 2570/2024 have also not given any reason for issuance of waiting list. Thus, it cannot be said that the waiting list candidates have no right to be considered in view of no recruitment rules made in this behalf. 19. From the records, it is also vivid that in both the cases the respondents have not pressed into service the recruitment rules applicable in the appointment and selection of Assistant Grade-III or other posts for which the advertisement has been issued and the Rules, 2023 as referred to by the petitioner in WPS No. 2570/2024 will not be applicable as it has been issued after issuance of the advertisement. It is pertinent to mention here that these Rules were not in existence at the time of issuance of advertisement, as such it cannot be made retrospective. 20. Considering the well settled legal position that in absence of any rules with regard to the subject matter, the executive instruction can be issued to execute the work. The respondents have issued advertisement in WPS No. 3862/2024 and Clause 6 of the advertisement clearly provides for filling up the post from waiting list candidates. Similarly, in WPS No. 2570/2024, the advertisement is silent but waiting list has been issued and no reason for issuance of waiting list has been submitted by the respondent which establishes that waiting list cannot be considered. 21. The law with regard to validity of executive instruction quo recruitment rules framed under Article 309 of the Constitution of India has been well settled by Hon’ble the Supreme Court and it has been held that the rules framed under Article 309 will prevail where the rule is in Page 12 of 14 existence and in absence of rule, the gap can be filled by issuing the executive instruction but the executive instruction cannot replace the Rule, it can supplement the Rules or can fill the gap. In the present case, no rule has been placed on record whereas in the advertisement, there is provision of waiting list, therefore, the advertisement which is an executive instruction will prevail and the same is binding in nature between the parties. Hon’ble the Supreme Court in case of Tej Prakash Pathak & others Vs. Rajasthan High Court & others [(2025) 2 SCC 1] has considered the effect of executive instruction and its binding values over the rule and in absence of rule. Hon’ble the Supreme Court has held in paragraph 44, 45 & 47 as under:- “44. In K. H. Siraj v. High Court of Kerala & Ors. the High Court of Kerala invited applications for appointment to the post of Munsif Magistrate in the Kerala Judicial Service. Out of more than 1800 candidates who had applied, 1292 applications were found valid. 118 candidates passed the written examination. Out of the said candidates, 88 passed the interview and select list was prepared from amongst these 88 candidates. Candidates who were not selected as they had not secured the prescribed minimum marks in the interview filed writ petitions contending that in the absence of specific legislative mandate prescribing cut-off marks in interviews, the fixing of separate minimum cut- off marks in the interview for further elimination of candidates after a comprehensive written test touching the required subjects in detail, was violative of the statute. 45. The writ petitions were allowed by a single judge of the High Court against which intra-court appeal was filed before division bench of the High Court. The division bench set aside the order of the learned single judge against which appeals came before this Court. While dismissing the appeals upon interpretation of Rule 7 of the Kerala Judicial Service Rules, 199129, this Court held: “50. What the High Court has done by the notification dated 26.3.2001 is to evolve a procedure to choose the best available talent. It cannot for a moment be stated that prescription of Page 13 of 14 minimum pass marks for the written examination or for the oral examination is in any manner irrelevant or not having any nexus to the object sought to be achieved. The merit of a candidate and his suitability are always assessed with reference to his performance at the examination and it is a well-accepted norm to adjudge the merit and suitability of any candidate for any service, whether it be the Public Service Commission (IAS, IFS, etc) or any other. Therefore, the powers conferred by Rule 7 fully justified the prescription of the minimum eligibility condition in Rule 10 of the notification dated 26.3.2001. The very concept of examination envisaged by Rule 7 is a concept justifying prescription of a minimum as benchmark for passing the same. In addition, further requirements are necessary for assessment of suitability of the candidate and that is why power is vested in a high- powered body like the High Court to evolve its own procedure as it is the best judge in the matter. xxx xxx xxx 62. Thus it is seen that apart from the amplitude of the power under rule 7 it is clearly open for the High Court to prescribe benchmarks for the written test and oral test in order to achieve the purpose of getting the best available talent. There is nothing in the rules barring such a procedure from being adopted. It may also be mentioned that executive instructions can always supplement the rules which may not deal with every aspect of a matter. Even assuming that Rule 7 did not prescribe any particular minimum, it was open to the High Court to supplement the rule with a view to implement them by prescribing relevant standards in the advertisement for selection.” following the rules relating to reservation of appointments contained in Rules 14 to 17 of part 2 of the Kerala State and Subordinate Services Rules, 1958. (2) The list consisting of not more than double the number of probable vacancies notified shall be forwarded for the approval of the Governor. The list approved by the Governor shall come into force from the date of the approval and shall remain in force for a period of two years or until a fresh approved list is prepared, whichever is earlier. xxx xxx xxx 47. The decision in K.H. Siraj (supra) makes it clear that if the rules governing recruitment provides latitude to the competent authority to devise its procedure for selection it may do so subject to the rule against arbitrariness enshrined in Article 14 of the Constitution. Even K. Manjusree (supra) does not proscribe fixing minimum marks for either the written test, or the interview, as an eligibility criterion for selection. What K. Manjusree (supra) does is to regulate the stage at which it could be done. This is clear from the decision of this Court in Hemani Malhotra v. High Court of Delhi.” 22. From the above discussion and facts of the case, it is quite vivid that Page 14 of 14 the selected candidates in both the writ petitions have resigned within one year i.e. during validity of waiting list, therefore, the respondents should have considered the case of both the petitioners in both the petitions for appointment which they have miserably failed to consider and mechanically rejected the representations of the petitioners in WPS No. 2570/2024 on 19.03.2024 & in WPS No. 3862/2024 on 17.09.2023. Therefore, order dated 19.03.2024 (Annexure P/1) in WPS No. 2570/2024 & order dated 17.09.2023 (Annexure P/4) in WPS No. 3862/2024 are quashed. 23. Consequently, the petitioners are directed to be appointed on the posts of Assistant Grade-III in WPS No. 2570/2024 & Assistant Grade-III (Typist/Sell Amin) in WPS No. 3862/2024 within six weeks from the date of receipt of copy of this order. 24. It is made clear that on reinstatement of the petitioners on the posts for which they have applied, they will not be entitled to get any backwages for the intervening period and seniority will be granted to the petitioners from the date they will be appointed by the respondents. 25. Consequently, the writ petitions are partly allowed. Arun Sd/- (Narendra Kumar Vyas) Judge