Advocate v. BHARATI COLLEGE AND ORS Through

Judgment

1. This petition has been filed under Article 226 of the Constitution, seeking appointment to the post of Assistant Professor, Political Science (SC Category) in the respondent-Bharati College [“College”]. The petitioner also assails a letter dated 28.01.2025, by which the College has rejected her representation for this purpose.

2. The College issued an advertisement dated 16.02.2023, inviting candidates for several posts, including the post of Assistant Professor (Political Science). The petitioner applied for the said post under the Scheduled Caste [“SC”] category, for which two posts were reserved. The Signature Not Verified Signed By:UMANG KHANNA Signing Date:02.06.2025 13:54:56 W.P.(C) 8104/2025 Page 1 of 9 result was declared on 23.11.2023, in which the petitioner was placed at serial No.1 in the waitlist. Respondent No. 8 herein was one of the two selected candidates.

3. Respondent No. 8 was appointed and joined the service of the College, but it was subsequently determined that she did not fulfil the eligibility criteria required in terms of the advertisement. Her services were, therefore, terminated by an order dated 28.10.2024.

4. Pursuant to the termination of respondent No. 8, the petitioner made several representations to the College for appointment to the said post as she was at serial No.1 in the waitlist, but the representations remained unanswered.

5. Thereafter, she filed W.P.(C) 1219/2025, seeking appointment to the said post, which was disposed of by order dated 31.01.2025. The Court noted that the termination of respondent No. 8 was under challenge by way of a writ petition [W.P.(C) 15780/2024], which is pending, and that the College had not commenced any fresh process of selection. It directed the respondents to consider the petitioner’s representation by way of a speaking order, prior to commencement of any fresh selection.

6. In the meanwhile, the College passed the impugned order dated

28.01.2025, rejecting the petitioner’s representation, stating as follows: “This is in reference to your representation dated 18th November 2024 regarding the appointment of a waitlisted candidate for the position of Assistant Professor in the Department of Political Science under the SC category. Your case was presented before the Governing Body during its meeting held on 8th January 2025. The Governing Body has agreed to take note of the communication from the University of Delhi, as referenced in CB.II/Clari-Ord.XII/2024/121, (clause-6) dated 03.04.2024, which states: Signature Not Verified Signed By:UMANG KHANNA Signing Date:02.06.2025 13:54:56 W.P.(C) 8104/2025 Page 2 of 9 "The candidates on the waitlist can be given the offer of appointment if any of the selected candidates do not join within the given timeframe. Hence, your request cannot be considered.”

Ms. Shailja Nanda Mishra, learned counsel for the petitioner, submits that the petitioner is entitled to appointment to the said post, pursuant to termination of respondent No. 8’s service, as she was first in the waitlist. She contends that the appointment of respondent No. 8 was void ab inito, as she did not meet the requisite eligibility criteria in terms with the advertisement, and it was the petitioner who ought to have been selected and appointed.

8. Ms. Mishra also relies on a communication dated 03.04.2024, issued by University of Delhi [“DU”], which laid down circumstances in which a vacant post shall not be filled by the waitlist, as follows: “6. The candidates in the waitlist can be given the offer of appointment if and only if the selected candidate did not join in the given timeframe. Thus, the post which has fallen vacant due to any of the reason(s) given below cannot be filled from the person in the waitlist. (i) Resignation of selected candidate. (ii) Death / VRS / Resignation of an employee (iii) Post has fallen vacant due to the incumbent appointed at any other higher position / principal etc.”1 Ms. Mishra submits that the vacancy in question does not fall within the category of vacancies mentioned above, and therefore the post does not warrant a fresh advertisement. The vacancy ought to have been filled from the waitlist. 1 Emphasis supplied. Signature Not Verified Signed By:UMANG KHANNA Signing Date:02.06.2025 13:54:56 W.P.(C) 8104/2025 Page 3 of 9

9. In support of the petitioner’s contention, Ms. Mishra relies upon a judgment of this Court in Raghunath Prasad Saket v. Satyawati College & Ors2, which challenged the appointment of a candidate to the post of Lecturer in Economics (SC Category), as he did not possess the mandatory National Eligibility Test qualification at the time of interview. The petition was allowed, and the candidate’s appointment was set aside as being void ab inito. The Court noted that the petitioner therein was placed second in the panel, and remanded the selection to the Selection Committee to finalise the appointment within a fixed time period.

10. On the other hand, Ms. Monika Arora, learned counsel for the College, and Mr. Mohinder J.S. Rupal, learned counsel for DU, submit that a candidate in the waitlist has no vested right in situations where selected candidates were appointed, but vacate their post subsequently. They contend that in such circumstances, the panel stands exhausted, and a fresh selection process has to be undertaken.

11. Ms. Arora contends that while rejecting the petitioner’s representation, the Governing Body took note of the aforesaid communication by DU, and laid emphasis on the fact that it categorically mentions that the “candidates on the waitlist can be given the offer of appointment if any of the selected candidates do not join within the given timeframe”. She further contends that in the present case, respondent No. 8 was selected and had joined the services of the College. She was terminated after almost 11 months of being selected. There is, therefore, no question that respondent No. 8 had not joined the services within the given timeframe. 2 2009 SCC OnLine Del 3121, [hereinafter, “Raghunath Prasad Saket”]. Signature Not Verified Signed By:UMANG KHANNA Signing Date:02.06.2025 13:54:56 W.P.(C) 8104/2025 Page 4 of 9

12. Having heard learned counsel for the parties, I am of the view that the legal position is indisputably against the petitioner. The Supreme Court has considered the question in several decisions including Sudesh Kumar Goyal v State of Haryana & Ors3, Madan Lal v State of Jammu and Kashmir4, and State of Punjab v Raghbir Chand Sharma5. These judgments have all been considered in a recent judgment by the Division Bench of this Court in Dr. Shashi Bhushan v. University of Delhi6.

13. The principles have been developed flowing from the judgment in Shankarsan Dash v UOI7, wherein the Supreme Court held that a selected candidate has no indefeasible right to appointment.

14. A detailed discussion on the earlier authorities is unnecessary, because they have been elaborately considered in Dr. Shashi Bhushan. The Division Bench was concerned, as in the present case, with recruitment for the post of Assistant Professor in a constituent college of DU. There also, the petitioner was first in the waitlist. He claimed a right to appointment upon resignation of one of the selected candidates. The Court, inter-alia, noticed the communication of DU dated 03.04.2024, which has been cited by Ms. Mishra in her arguments. However, upon a detailed consideration inter-alia of the aforesaid judgments of the Supreme Court, the Division Bench found against the writ petitioner.

15. In Sudesh Kumar Goyal, the Court found that being placed at the top of the waiting list did not confer any right to appointment upon the candidate. It held that the waitlist could not be operated after resignation