Mr. Sarvesh Singh and Ms. Rajeshwari Mitra, Advocates v. UNION OF INDIA AND ANR

Judgment

1. The present writ petition pertains to a recruitment exercise conducted by respondent No. 2 - Food Corporation of India [“FCI”] in the year 2015.

2. By an advertisement/notification issued in February 2015, FCI invited applications for various posts, including for the post of Assistant Grade III (Depot). The vacancies were advertised by category and zone. The petitioner applied in the unreserved category for the North Zone, for which 331 vacancies were advertised. He was originally placed in the wait list at S.No. 188. Signature Not Verified Signed By:BHUPENDER Signing Date:18.04.2025 18:18:22 W.P.(C) 10630/2018 Page 1 of 9

3. The petitioner filed this writ petition on 03.10.2018, contending that FCI had several vacancies for the concerned post in the North Zone, but was not filling the vacancies from the wait list. He, therefore, sought the following reliefs: “a) Direct the Respondent No. 2 to consider the petitioner for the vacant posts of Assistant Grade (III), Depot; b) In the alternative, direct the respondent corporation to permit the petitioner, having become overage on 12.06.2018 for being in the waiting list category in the exam conducted in 2015, to appear in the subsequent examination for the post of Assistant Grade (III), Depot conducted by the respondent Corporation; c) Pass such other order or orders as the Hon'ble Court may deem just and proper under the facts and circumstances of the case.”

4. While issuing notice in the writ petition on 05.10.2018, the Court noticed that candidates empanelled in a waiting list, do not have an indefeasible right to appointment, even if vacancies are available, subject to the caveat that the decision not to fill up the vacancies should not be arbitrary. Notice was issued limited to this question.

5. I have heard Mr. Sarvesh Singh, learned counsel for the petitioner, and Mr. Manoj, learned counsel for FCI.

6. FCI has filed a counter affidavit dated 22.02.2019, in which it is stated that the number of vacancies in the unreserved category for Assistant Grade III (Depot)-North Zone was enhanced to 413. The select list was prepared to fill up these vacancies. However, document verification was conducted in respect of candidates numbering three times the number of vacancies, for preparation of a wait list. The wait list was operated to offer appointment if a selected candidate did not join the post, or resigned/vacated the post within one year after joining. It is clearly stated that the number of vacancies advertised were filled up, and Signature Not Verified Signed By:BHUPENDER Signing Date:18.04.2025 18:18:22 W.P.(C) 10630/2018 Page 2 of 9 candidates until S. No. 58 in the wait list were appointed. The petitioner was well below S. No. 58 in the wait list – in the counter affidavit, it is mentioned that he was at S. No. 184, rather than S. No. 188, but this does not bear much significance.

7. The petitioner’s contention that vacancies continued to exist in the post of Assistant Grade III (Depot)-North Zone, is based upon cadre-wise manpower position for the quarter ending March 2018, which shows vacancies for various posts. However, FCI has stated in its counter affidavit and an application filed by it [CM APPL. 48749/2023], that the quarterly manpower position reflects the number of vacancies available in March 2018, three years after the advertisement in question. The information was required to determine the vacancies that were to be filled, as of March 2018, but did not have any bearing on the operation of the wait list prepared three years earlier. As far as the advertisement in question is concerned, it has been categorically stated that no vacancy exists against the posts advertised thereunder, as all the posts had been filled by selected candidates, and from the wait list, until S.No. 58. In fact, it is stated, relying upon an Office Memorandum [“OM”] dated

13.06.2000, issued by Department of Personnel and Training [“DoPT”], that vacancies are required to be filled from the reserved panel only if they arise within one year of the original selection. It is also stated in the application filed by FCI that FCI has carried out further recruitment for the same post in the year 2019.

8. As against this, the petitioner’s submission is that the wait list must be exhausted completely, before fresh recruitment for the same post is carried out at any time in the future. In support of this submission, Mr. Signature Not Verified Signed By:BHUPENDER Signing Date:18.04.2025 18:18:22 W.P.(C) 10630/2018 Page 3 of 9 Singh relies upon a circular issued by FCI on 16.11.1982, which notes that the FCI (Staff) Regulations, 1971, is silent about the validity of a panel for direct recruitment in Category-III and IV posts, and provides as follows: “2. The matter has been considered and it has been decided to follow the instructions contained in deptt. of Food O.M.No. 22011/2/79-Estt (1) dated 8.2.82 (copy enclosed). According to the said O.M. "there would be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies, either by the method of direct recruitment or through a Departmental Competitive Examination". It is clarified that the above instructions will apply in the case of direct recruitment in Category III and IV posts as per Regulation 9 (a) of FCI (Staff) Regulations, 1971. The procedure for Category I and II posts shall be followed in accordance with Regulations 9 (b) (i) of the FCI (Staff) Regulations, 1971.”1

9. The OM dated 08.02.1982, referred to in the aforesaid circular, deals with the validity period of the list of selected candidates prepared on the basis of direct recruitment/departmental competitive examination. As the petitioner’s case rests upon an interpretation of the said OM, it is reproduced in full hereinbelow: “The undersigned is directed to say that references are being received from time to time from Ministries/Deptts. enquiring as to what should be the validity period of a list of selected candidates prepared on the recruitment or Departmental Competitive basis of direct Examination. Normally, in the case of direct recruitment a list of selected 2. candidates is prepared to the extent of the number of vacancies (other persons found suitable being put on a reserve list, in case some of the persons on the list of selected candidates do not become available for appointment). Similarly, in the case of Departmental Competitive Examinations, the list of selected candidates has to be based on the number of vacancies on the date of declaration of results, as the examination is competitive and selection is based on merit. A problem may arise when there is a fluctuation in the vacancies after the list of selected candidates is announced. 1 Emphasis supplied. Signature Not Verified Signed By:BHUPENDER Signing Date:18.04.2025 18:18:22 W.P.(C) 10630/2018 Page 4 of 9

3. The matter has been carefully considered. Normally, recruitment whether from the open market or through a Departmental Competitive Examination should take place only when there are no candidates available from an earlier list of selected candidates. However, there is a likelihood of vacancies arising in future; in case, names of selected candidates are already available, there should either be no further recruitment till the available selected candidates are absorbed or the declared vacancies for the next examination should take into account the number of persons already on the list of selected candidates awaiting appointment. Thus, there would be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies, either by the method of through a Departmental Competitive direct Examination. recruitment or

4. Once a person is declared successful according to the merit list of selected candidates, which is based on the declared number of vacancies, the appointing authority has the responsibility to appoint him even if the number of vacancies undergoes a change, after his name has been included in the list of selected candidate. Thus where selected candidates are awaiting appointment, recruitment should either be postponed till all the selected candidates are accommodated or alternatively intake for the next recruitment reduced by the number of candidates already awaiting appointment and candidates awaiting appointment should be given appointments first, before starting appointments form a fresh list from a subsequent recruitment or examination.

5. Ministry of Finance etc, are requested to bring the above instructions to the notice of all the appointing authorities under them for information and guidance.”2

10. Mr. Singh relies on paragraph 4 above, to submit that the appointing authority must appoint all selected candidates prior to conducting a fresh recruitment. However, this argument misses the distinction between a “selected candidate” and a candidate in the “reserve list”, which is brought out in paragraph 2. The number of vacancies advertised are filled by “selected candidates”, and other suitable candidates are placed in the reserve list. It is clear from paragraph 2 that 2 Emphasis supplied. Signature Not Verified Signed By:BHUPENDER Signing Date:18.04.2025 18:18:22 W.P.(C) 10630/2018 Page 5 of 9 the list of “selected candidates” is based upon the number of vacancies available, and paragraph 4 of the OM applies only to “selected candidates”. This interpretation also aligns with the intention of the circular of FCI dated 16.11.1982, as evident from paragraph 2 thereof. The petitioner was, at best, in the “reserve list”, and cannot claim an entitlement at par with “selected candidates”, whose number must accord with the number of vacancies advertised.

11. The petitioner’s contention would imply that no recruitment exercise can be carried out for a particular post until the entire pool of wait listed or reserve candidates is exhausted, regardless of the number of vacancies that were advertised in the advertisement in question. I find no basis for such a suggestion, which is contrary to the settled law that wait listed candidates can be appointed against vacancies for which they apply, in terms of the recruitment notification. Reference may be made, in this connection, to the observations of the Supreme Court in Mukul Saikia & Ors. v. State of Assam & Ors3, and State of Orissa & Anr. v. Rajkishore Nanda & Ors4. In the latter judgment, the Supreme Court has summarised the legal position thus: “11. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as “the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution”, of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to “improper exercise of power and only in a rare and exceptional circumstance and in