The Allahabad High Court has held that the settled principle that inclusion in a select list confers no indefeasible right to appointment cannot be used to reject the claim of a selected candidate who relies on vacancies alleged to be available and on an earlier direction of the Court requiring his case to be reconsidered.

It held that the recruiting authority was obliged to ascertain the actual vacancy position, apply the recruitment provisions governing the selection and give legally sustainable reasons for its decision.

Justice Irshad Ali held,

“This Court is conscious of the settled principle that mere inclusion of a candidate's name in a select list does not, by itself, confer an indefeasible right to appointment. Equally, however, the said principle does not absolve the recruiting authority of its obligation to act fairly, consider relevant material and apply the governing recruitment provisions consistently.”

The Transport Commissioner, Uttar Pradesh issued an advertisement dated 10.08.2004, published in Dainik Jagran on 12.08.2004, inviting applications for the post of Enforcement Constable. Petitioner was interviewed on 18.01.2005. His name figured at Serial No.54 in the select list of OBC candidates, prepared on 24.03.2005 and displayed on 28.03.2005. Though 50 OBC posts had been advertised, the select list carried 55 names. Appointments were made up to Serial No.52.

Petitioner's representations and reminders brought him no appointment. Two other candidates from the same selection were appointed after approaching this Court — Imamuddin, by order dated 03.05.2006, against a vacancy caused by the death of Munish Kumar Pandey, and Bal Govind Upadhyay, on 20.08.2009.

On 26.08.2011, in Writ Petition No.6515 (S/S) of 2008 filed by the petitioner, the Court directed that his case be reconsidered in the light of the judgment in Imamuddin's case. His representation dated 04.04.2012 was rejected by order dated 26.11.2012, which he challenged in the present petition.

Petitioner pleaded that 30 OBC vacancies had been advertised but never filled, that the advertisement stipulated a 25% quota for vacancies arising during the selection year, and that the respondents, having used such vacancies to appoint Imamuddin and Bal Govind, could not approbate and reprobate.

Standing Counsel submitted that all selected candidates had joined in March and April 2005 and that no OBC vacancy remained after 30.06.2005. Under Rule 30(j) of the U.P. Transport Department Enforcement Employees Cadre (Group 'D') Service Rules, 1979, the recruitment year runs for twelve months from the first day of July, and the petitioner could not carry a claim from the recruitment year 2004-05 into vacancies of the next. Imamuddin's case was said to turn on its own facts, he being a General Category candidate appointed against a vacancy caused by a death.

The Court observed that the respondents' own explanation — that additional names were kept in the merit list to meet contingencies, and that 52 candidates were appointed, two of them against vacancies arising during the relevant period — showed that vacancies beyond the advertised number had been drawn upon. The assertion of 30 unfilled OBC vacancies raised a factual question which the authority, holding the recruitment records, was in a position to answer.

“A bare statement that all selected candidates had joined does not, without more, explain the separate assertion concerning the unfilled OBC vacancies.”

On the earlier direction to reconsider, the Court held,

“Compliance with such a direction cannot be reduced to a formal repetition of the conclusion reached earlier, without addressing the matters that the Court required the authority to examine.”

The Court added that any relief had to remain within the statutory recruitment framework and could not displace candidates higher in merit. It nonetheless held,

“the principle that a select list creates no indefeasible right cannot be employed as a substitute for examining a claim founded upon an allegedly available vacancy and a specific direction for reconsideration”

Accordingly, the order dated 26.11.2012 was quashed and the writ petition allowed. The respondents were directed to extend to the petitioner the benefit of the principle underlying the relief granted to Imamuddin and Bal Govind, subject to his OBC category, merit position and the applicable recruitment provisions, and not to deny his claim merely because his name appeared at Serial No.54. The determination is to be made by a reasoned order within three months of production of a certified copy of the judgment.