Writ Jurisdiction Can't Be Exercised To Mandate Preparation Of 'Wait List' In Recruitment Exams: Orissa High Court

"Whether or not to have a waiting list for any particular selection is a policy decision to be made by the recruiting entity and it is not for the Court to dictate that for every selection there must be a wait list."

Factual Background:

An advertisement was issued by the State Selection Board (SSB), Department of Higher Education, Bhubaneswar, for filling up the posts of Lecturers in Non-Government Aided Colleges of Odisha. There were a total of 1,625 vacancies in different disciplines. Among the eligibility criteria was the age limit.

It was specified that candidates of general category should not be less than 21 years or more than 42 years as on 1st October, 2015. The relaxation of the upper age limit was applicable only to candidates belonging to the Scheduled Caste (SC), Scheduled Tribe (ST), Socially and Educationally Backward Classes (SEBC), Women and Ex-Servicemen. For persons with disability (PwD), the age limit was relaxable by 10 years provided that the disability was not less than 40%.

100 posts of Lecturers in Physics were advertised. The petitioner applied for the post of Lecturer in Physics. However, he did not qualify in the main merit list published. As per the counter affidavit filed by the Opposite Parties, his name figured at Sl. No. 45 after the merit list in the UR category. The SEBC candidates who topped in the list qualified in the UR category.

The grievance of the petitioner was that there was no waiting list prepared and therefore, it was not clear whether the posts left unfilled by non-joining of the selected candidates would be offered to those in the wait list. Claiming that he has a legitimate expectation that such a process would be adopted, he filed the present petition after making a representation.

On 25th April 2017, a counter affidavit was filed by the Opposite Parties in which it was categorically stated that there was no requirement for preparing any waiting list beyond those who figured in the merit list. This was not contemplated in the advertisement. Therefore, it was beyond the purview of the SSB to consider candidates beyond the merit list.

The petitioner filed another writ petition wherein he stated that after an examination was held in 1992, the next selection was held in 2015 pursuant to an advertisement in which he participated but was unsuccessful. Meanwhile, the petitioner completed 42 years as on 11th July, 2017. Thereby, he would not be eligible to take the examination. It was claimed that in view of the large gap in holding consecutive selections, the age relaxation made available to candidates for civil services should also be extended to those applying pursuant to the said advertisement.

A reply was filed on behalf of the Department of Higher Education pointing out that the provisions of the Odisha Civil Service (Fixation of Upper Limit Age) Rules, 1989 as well as the amendments made thereto have no application as far as filling up vacancies in the Non-Government Aided Colleges in the State are concerned. Those are governed by the Odisha Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974.

Court's Observations:

Having regard for the above facts, the Court held,

"It is not possible for the Court, if there is no requirement in the advertisement and as per the governing Rules for preparing any 'wait list', for a mandamus to be issued to the Opposite Parties to offer any vacant post to the Petitioner irrespective of the fact that he does not figure in the merit list."

While disposing of the second petition, the Court further held that fixation of upper age limit for appearance in examinations, is also in the policy domain of the State. Therefore, that is not for the Court to decide. Accordingly, it was concluded that since the Rules have universal application, there cannot be any discrimination claimed by non-extension of relaxation of the upper age limit made available to the candidates for civil services to all other recruitment processes as well.

Consequently, both the petitions were dismissed.

Case Title: Dr. Srikant Panda v. State of Odisha & Ors.

Case No.: W.P.(C) No. 2757 of 2017 & W.P.(C) No. 19306 of 2018

Date of Judgment: 22^nd September 2022

Coram: Dr. S. Muralidhar, CJ. & Chittaranjan Dash, J.

Judgment Authored By: Dr. S. Muralidhar, CJ.

Counsel for the Petitioner: In person

Counsel for the Respondent: Mr. M.K. Khuntia, Additional Government Advocate

Citation: 2022 LiveLaw (Ori) 144

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