Duty To Fill Up Vacancies From Waiting List Does Not Arise In The Absence Of A Rule Mandating It : Supreme Court

The Supreme Court has held mere publication of a candidate’s name in the Additional List (waiting list) for the purpose of recruitment as a Primary School Teacher, will not create any right to be appointed in favour of such candidate. Entry 66 of the Karnataka Education Department Services (Department of Public Instructions) (Recruitment) Rules, 1967, which talks about additional list, does not mandatorily obligate the State to make appointments.

The Bench comprising of the Chief Justice Dr. Dhananjaya Y Chandrachud and Justice Pamidighantam Sri Narasimha, while adjudicating an The State of Karnataka & Ors. v Smt. Bharathi S., has observed based on precedents that the duty to fill up vacancies from the Additional List (waiting list) can arise only on the basis of a mandatory rule. In the absence of such a mandate, the decision to fill all the vacancies from the Additional List, is left to the wisdom of the State. However, the State cannot act arbitrarily and its action will be subject to judicial review.

BACKGROUND FACTS

The Department of Public Instructions (State of Karnataka) issued a notification for recruitment of Assistant Teacher in Government Primary School under the Karnataka Education Department Services (Department of Public Instructions) (Recruitment) Rules, 1967 (“Service Rules”).

Smt. Bharathi S. (“Candidate/Respondent”) applied for the position. On 20.01.2016, the selection authority, issued the final select list of five candidates in which the Respondent’s name was not present.

Subsequently, the Selection Authority published an Additional List (Waiting List) dated 29.02.2016, which contained the name of the Respondent alone. The Additional List contained a note which stated that mere inclusion in the list would not confer a right to appointment, the selection of the candidate is provisional and subject to the directions received by the government.

After sometime, a selected candidate vacated the post. Consequently, the Respondent being the only candidate in the Additional List, addressed a letter dated 08.09.2016 to the Department seeking consideration of her candidature for the vacant post.

The Respondent’s request for appointment was rejected by the State on the basis of Proceedings of Government of Karnataka dated 11.04.2003, which provides that an Additional List shall remain valid up to six months from the date of its publication or the date when all the posts are filled up, whichever is earlier.

Since the Respondent made a representation on 08.09.2016, the period of six months had already elapsed if calculated from 29.02.2016.

The Respondent challenged the decision of State before the Karnataka Administrative Tribunal (“Tribunal”) and the same was dismissed. The Respondent filed a writ petition before the High Court challenging the order of the Tribunal.

The High Court set aside the Tribunal’s Order and held that the State has failed in its obligation to inform the Respondent the vacancy has arisen. Further, there were “latches in filling up the vacancy” and the Respondent was not at fault when she made her application after expiry of six months. The State was directed to give effect to the Additional List within three months from the date of the order.

The State filed an appeal before the Supreme Court against the High Court’s order.

SUPREME COURT VERDICT

Mere publication of the Additional List does not create any right to be appointed

The Bench opined that the Proceedings dated 11.04.2003 is only an executive instruction and cannot override the application of Service Rules. The Bench placed reliance on Entry 66 in the Schedule of the Service Rules, which states that there is no obligation on the State to make appointments from the Additional List. The Bench held that mere publication of name in Additional List does not confer any right to the Candidate for appointment.

“Mere publication of the Additional List does not create any right to be appointed. There is no such mandate in the Rule. Entry 66 of the Rules merely provides that the Selection authority shall prepare and publish an Additional List of candidates not exceeding ten percent of the vacancies and the said list shall cease to operate from the date of publication of notification for subsequent recruitments”, the Court Ruled.

Further reliance was placed on Subha B. Nair & Ors. v. State of Kerala & Ors., (2008) 7 SCC 210 and Shankarsan Dash v. Union of India, (1991) 3 SCC 47 and it was observed that the duty to fill up vacancies from the Additional List (waiting list) can arise only on the basis of a mandatory rule.

“In the absence of such a mandate, the decision to fill all the vacancies from the Additional List, is left to the wisdom of the State. We will however add that State cannot act arbitrarily and its action will be subject to judicial review.”

It has been held that the High Court erroneously assumed the existence of a right to be appointed on the basis of Entry 66 in the Schedule to the Service Rules. On the issue of whether the Respondent being unaware of other candidate’s resignation will have any bearing on the case, the Bench held as under:

“Finally, the conclusion of the High Court that the Respondent was unaware of the resignation of the appointed candidate will have no bearing on the operation of the Rule. The operation of the Additional List, which is to be published in the official Gazette will depend upon the time specified in the Rule and not as per the knowledge of individual candidates.”

The High Court’s decision has been set aside and the appeal filed by the State stands allowed.

Case Title: The State of Karnataka & Ors. v Smt. Bharathi S.

Citation: 2023 LiveLaw (SC) 472

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