D.N.PATEL.J. - (1.) THIS writ petition has been preferred mainly for the reason that the petitioners are waiting list candidates for the post of Lady Supervisor and they want appointment. In all there were selection of 12 Lady Supervisors. In pursuance of the public advertisement for 12 vacancies all the candidates who were selected have already joined. The petitioners are in the waiting list and under the hope that waiting list will be operated but it has not been operated at all. The petitioners have recounted the vacancy for the post so advertised namely. Lady Supervisor and have pointed out that instead of 12 there were 16 vacancies. This information was obtained under the Right to Information Act. 2005 and as per Annexure -3 to the memo of the petition there were 4 more vacancies for the post of Lady Supervisor as on May 2009.
(2.) IT is submitted by learned counsel for the petitioners that at least 4 waiting list candidates who are the petitioners before this Court ought to have been in the selected list for the post of Lady Supervisor. There is a wrong calculation of the vacancy of the post by the respondents. Learned counsel for the petitioner has relied upon the advertisement issued by the respondents for the post in question which is at Annexure -A to the counter affidavit. As per Clause 6 of the advertisement especially second paragraph thereof for all the vacant posts of Lady Supervisor the merit list will be operated and on the basis of this Clause 6 of the advertisement also it is claimed by the petitioners that in all there were 16 vacancies and. therefore all the 4 waiting list candidates ought to have been appointed on the post of Lady Supervisor. It is further submitted by learned counsel for the petitioners that there were no statutory rules not to operate the waiting list and hence also the petitioners who are in the waiting list for the post of Lady Supervisor should have been appointed like those selected candidates because there were already 4 vacancies with the respondents. Learned counsel for the petitioner has relied upon the decision rendered by the Honble Supreme Court in the case of Naseem Ahmad and others v. State of Uttar Pradesh and another, reported in (2011) 2 SCC 734 especially upon paragraphs 21, 22 and 23 thereof and it is thus concluded that even though the petitioners are in the waiting list because of four more vacancies' available at the relevant time for the post in question these petitioners could not have been enlisted in the waiting list but they ought to have been enlisted in the selected list candidates and they ought to have been appointed on the post of Lady Supervisor and therefore this petition may kindly be allowed. 2) JLJR 207.
(3.) HAVING heard learned counsel for both the sides and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition mainly for the following facts and reasons: (1) A public advertisement was given by the respondent -State authorities on 27th January, 2008 for filling up the posts of Lady Supervisor. The public advertisement is at Annexure -A to the counter affidavit, filed by the State. Looking to this public advertisement the employer namely the State wanted to fill up 12 vacancies for the post of Lady Supervisor. (ii) It further appears from the facts of the case that candidates including the petitioners applied undergone the selection process and ultimately the select list was prepared Minutes of the meeting held by the respondents was prepared wherein the list of the selected candidates has been given and the petitioners were enlisted in then waiting list. The Minutes of the meeting is at Annexure -C to the counter affidavit filed by the respondent -State which is dated 22nd May, 2008. Thus 12 candidates were enlisted in the select list and the petitioners were enlisted in the waiting list. (iii) The petitioners are at serial numbers 1, 2, 3 and 4 respectively in the waiting list. All the 12 selected candidates have joined the services and it is not the case of the petitioners that any of the selected candidates have not joined the services or has subsequently resigned or terminated or has expired. In this set of circumstance no question of operating the waiting list whatsoever arises. Select list got exhausted no sooner did State appoints select list candidates. Thereafter select list cease to exist and has outlived its utility. The currency of select list had expired as soon as the number of posts advertised are filled up. thereafter appointments beyond, the number of posts advertised would amount to filling up future vacancies (2009) 1 SCC paragraph 33. Waiting list can be operated only in certain contingencies. viz.: (a) if any selected candidates have not resumed the services; (b) if there is some extreme exigency, the Government may as a matter of policy decide to appoint persons, in order of merit from waiting list [as per para 9 of 1994 Supp (2) SCC 591]. (iv) Waiting list cannot be operated by the State authorities for the future vacancies. The vacancies for which no advertisement has been given cannot be filled up from the candidates who are in the waiting list. Waiting list is not reservoir of the candidates to be appointed for all time to come. Otherwise, the chance of fresh eligible candidates to get the public employment under Article 16 of the Constitution of India will be violated. (v) If the advertisement has been given for "X" number of post then the waiting list cannot be operated for "X" + "Y" number of post. Future vacancies cannot be filled up from waiting list candidates. No vacancy can be filled up from the existing unexhausted select list which arose subsequent to issue of advertisement. Once the selection of candidates for the advertised post is over, rest of the list of candidates cannot be used as reservoir, or as infinite stock to fill up future vacancy. (vi) It has been held by the Hon'ble Supreme Court in the case of Rakhi Ray v. High Court of Delhi, reported in (2010) 2 SCC 637 in paragraphs 7, 11 and 12 as under: - "7. 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 emergent situation such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale" otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus is not permissible in law.;