A Candidate Who Is Not In Reserve Or Waiting List Cannot Have Right Of Consideration: Delhi High Court

The Delhi High Court has said that a candidate, who is not falling in the reserve or waiting list, cannot claim a right to be considered for the appointment.

A division bench of Justice Sanjeev Sachdeva and Justice Tushar Rao Gedela said there is a sanctity attached to a reserve or waiting list by which candidates within such a list may be considered for appointment against vacancies created due to non-joining of the original select list candidates.

"Though, the caveat being that the prerogative is still that of the user department or the agency carrying out the selection procedure. A word of caution being that no candidate has an indefeasible right to appointment and only to consideration alone. It is trite that it is the prerogative of the Government/department to fill or not fill all the vacancies," the court said.

The court further said that it cannot countenance a situation where, under writ jurisdiction, a direction or Mandamus may be issued to the authorities to fill up the vacancies with candidates who are lower in merit and to select persons with mediocre results. "The substratum to hold competitive examinations and to select the best and meritorious candidates would be defeated."

The court thus dismissed pleas filed by two candidates who had applied for Assistant Professor (Radiotherapy) posts in the Ministry of Health and Family Welfare. Out of the 14 posts, two were reserved for SC, one for ST and four for OBC. The remaining seven posts were for unreserved category.

In the results declared in 2014, one of the petitioners Pragya Shukla was at number 4 of the list in which eight candidates were recommended candidates whereas the other candidate Deepti Sharma, also a petitioner, was at serial number 13 of the list in general category.

In Shukla's case, she had received a communication in August 2014 stating that her name was recommended for appointment to the post of Assistant Professor (Radiotherapy), containing a stipulation that offer of appointment would be made only after the Government have satisfied themselves after an enquiry that she was suitable in all respects for appointment to the service. However, she later received a letter informing her that her candidature has been cancelled and intimation letter stands withdrawn. She approached the tribunal seeking quashing of the cancellation letter.

On the other hand, Sharma before the tribunal sought reassessment of her candidature in the light of disqualification of Shukla and other two candidates, and revision of the waiting list of the candidates to include the names of other qualified candidates including her who were not part of the reserve or waiting list.

Sharma also sought an offer of appointment to the post of Assistant Professor in case other candidates in the waitlist above her were not found suitable.

While denying relief to Shukla, the court observed that her teaching experience gained by her at Delhi State Cancer Institute would not count towards the eligibility of three years teaching experience as required under advertisement or Rules of UPSC.

"In view of this, the Petitioner/Pragya Shukla cannot be held to be qualified for the post of Assistant Professor (Radiotherapy) and the Authorities below rightly recalled letter dated 07.08.2014 and correctly cancelled the candidature vide their letter dated 12.12.2014," the court said.

Similarly, dismissing Sharma's plea, the court said that her arguments were clearly speculative and were based upon the cancellation of other meritorious candidates or those in the Reserve or Waiting List.

"The whole substratum of the petitioner's case hinges on the spectrum of 'if's and but's' and contingent upon certain things happening. In the service jurisprudence there is no principle of a "Wait List" to a "Wait List". Therefore, even taking the case of the petitioner at its best, there is no way a candidate, not even forming a part of the Reserve/Wait List, urge to have any right whatsoever for being considered," the court said.

The court also said that Sharma's attempt to climb the ladder upwards based on speculative and contingent situations cannot be permitted as it would result in opening a Pandora's box and flood gates for all those candidates who were not part of the reserve and waiting list, thereby "choking the recruitment procedure and resulting in a tsunami of litigations"."

This is impermissible, the court said, adding that there cannot exist a 'wait list' to a 'wait list'.

"In view of the clear admission of the petitioner that she never formed part of the Reserve/Wait list and the arguments put forth, being based on speculations and contingencies, are untenable and are hereby rejected," the court said.

Title: DR. PRAGYA SHUKLA v. UNION OF INDIA & ANR and other connected matter

Citation: 2022 LiveLaw (Del) 1005

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