R. M. Sahai, J. - - (1.) THE question that arises for consideration in this writ petition, filed by a doctor, who had been selected and was placed at serial number 8 in the panel of the list prepared by a selection committee for appointing doctors in State Medical Colleges, is as to whether a candidate in the panel prepared by the Committee has a right to be considered and appointed against a vacancy which arises before cancellation of the list.
(2.) TO comprehend controversy in dispute it is necessary to mention that an advertisement was issued in February, 1984 by Director of Medical Education and Training for making ad-hoc appointments on the post of lecturer in various specialities including medicines, in State Medical Colleges. Although advertisement did not mention the number of vacancies which were likely to be filled, but from counter-affidavit and supplementary affidavit it appears Cabinet had taken a decision to appoint 4 ad-hoc lecturers against four vacancies, two permanent and two likely to occur in course of year. For this purpose Selection Committee prepared a panel consisting of nine persons. Out of these first two were selected for King George Medical College, Lucknow. They preferred to join there. Therefore, the third candidate was offered the first post, second went to the 4th, third to fifth and fourth to sixth. One Dr. Ravi Mishra was also ad-hoc lecturer in Moti Lal Nehru Medical College, which is amongst the State Medical Colleges. He was selected for King George Medical College, Lucknow. Therefore, another vacancy arose as Dr. Misra left Moti Lal Nehru Medical College. From Supplementary counter-affidavit it appears that one vacancy arose due to Dr. Ravi Mishra's joining at King George Medical College and another vacancy arose due to transfer of a lecturer from Meerut to Agra as the Reader of that College was appointed as Professor in newly created post and third vacancy arose due to termination of services of Dr. Bagga. What is claimed is that since vacancies of Dr. Bagga and other one due to transfer of a lecturer from Meerut to Agra became available in year 1985 they were not relevant for panel prepared for vacancies in 1984. If this stand of opposite parties is correct then petitioner obviously shall have no ease. But closer examination of the facts indicates that there is no substance in this stand, rather 84 and 85 have been attempted to be confused. It has nowhere been mentioned as to on what date list was prepared but this much is admitted that fresh advertisement was issued in February, 1985 and panel prepared on selection of 1984 was cancelled on 21st July, 1985. Question, therefore, is whether a person from panel of 1984 had any right to be appointed against vacancie which occurred before cancellation of list in 1985. Although the counter-affidavit expresses surprise on preparation of panel of nine persons against four vacancies, but it has not cared to file any Rule or Administrative Instructions which could indicate procedure prescribed for preparation of panel. Normally any panel prepared on basis of interview or selection consists of more names than the post so that in case any selected person does not join it may be offered to person lower in the list. Selection Committee, therefore, in preparing panel of nine persons against four vacancies, in absence of any rule or instructions cannot be said to have committed any error or violation of any order. Taking up the principal question as to whether a candidate placed in a select list has a right to be appointed if the vacancy arises before cancellation of select list it is clear from the advertisement issued in 1984 that it did not specify the number of vacancies for which applications were invited. It has not been explained if the cabinet decision for four posts in medicines was taken prior to issuing of advertisement or after it. If it was prior then it is not understandable as to what prevented the Director from specifying it in the advertisement not only for benefit of those who applied but for sake of certainty as well. Such practice has to be deprecated. It is apt not only to create uncertainty but generate arbitrariness and leave room for reducing or increasing the vacancy on considerations which may at times be irrelevant and extraneous. In any case even the cabient decision was to appoint two ad-hoc lecturers in two expected vacancy which were likely to occur. How this should be understood. That is expected within what period, in course of year, till next selection is held, till cancellation of the list etc. It normally depends on the rule or in its absence on administrative instructions. When neither is there then it has to be understood reasonably. Since the panel was prepared after February, 1984 may be in July, 1984 and it was cancelled in July 1985, the expected vacancy in respect of which the two appointments could be made was confined to this period. And two vacancies did arise out of which one arose because Dr. Ravish Misra a lecturer in Moti Lal Nehru Medical College was selected for King George Medical College. But what happens if more than two vacancies arose as it happened due to termination of service of Dr. Bagga. It could not have been foreseen by the Director or Cabinet. It resulted in increase of expected vacancy. That is a third vacancy arose. Could this be filled by the next person in panel or it was necessary to obtain Cabinet approval ? The answer to this depends on nature of panel or select list. For instance the list may be examination or selection wise or it may be list for one year or till next selection is made or till the list is cancelled etc. In the former that is where the list is examination or selection- wise the candidates in the waiting list can claim to be appointed if the selected candidate does not join and a vacancy arises. But the purpose of periodical list is to keep it alive for certain period and if a vacancy arises in that period then it should be offered to the candidate from the list. It is a right of the candidate to claim that he should be appointed against vacancy which occurs during that period. Otherwise there can be no purpose in keeping the list operative for a certain period. Where selection is made on expected vacancy it has by its nature to be flexible. Even the Public Service Commission had taken a decision in letter no. 127/Secty/81-82 dated 1-8-1981 that if a vacancy increases after issuance of advertisement then unless it is more than 50% of the advertised vacancy it should be filled from candidates who had applied in pursuance of advertisement. Although it is a guideline for commission but it being reasonable and just can be applied in cases where irrespective of a specification of expected vacancy if any additional vacancy arises before cancellation of select list then it is just and proper that it should be offered to the candidate who is next in the panel. It is more so when vacancy exists. In counter-affidavit it is not disputed that one vacancy is there. In this view it is not necessary to examine the effect of offering appointments to other doctors or other disciplines till 1985. For reasons stated above this petition succeeds and is allowed. A direction is issued to the Director to consider and appoint next available person from the list of 1984 against the vacancy which arose in 1984. Petition allowed..;