B.S.N.L. & Ors. Vs.
Abhishek Shukla & ANR. [2009] INSC 696 (8 April 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2239 OF 2009 (Arising out
of SLP (C) No.7676 of 2006) BSNL & Ors. ... Appellants Versus Abhishek
Shukla & Anr. ... Respondents
S.B. Sinha, J.
1. Leave granted.
2. This appeal is
directed against a judgment and order dated 1.02.2005 passed by a Division
Bench of the Allahabad High Court whereby and whereunder an order dated
1.12.2004 passed by a learned Single Judge of the said Court was modified as
also the order dated 3.1.2006 passed by a learned Single Judge of the said High
Court dismissing the review application filed by the appellant herein.
3. The basic fact of
the matter is not in dispute. An advertisement was issued by the Chief General
Manager, U.P. (W), Telecom Circle, Dehradun for recruitment to the post of
Telecom Technical Assistants (General Central Services) Group `C' non-gazetted,
non-ministerial in the office of Telecom District Manager, Pilibhit. In the
said advertisement, it was specified that there exists five vacancies for the
post of General Category candidates, two reserved for the candidates belonging
to Other Backward Classes and one for the Scheduled Caste candidates.
Indisputably,
pursuant to the said advertisement a large number of applications were filed. A
Selection Committee was constituted which prepared a select list. It is also
beyond any doubt or dispute that names of the appellants herein were placed in
the waitlist.
Results were
published on 8.8.2002 which is in the following terms :
"Sl. Roll No.
Name Date of Caste Total Roster No. Birth 1 14-035 Alok Kumar Rathor 05.07.78
OBC 724 Gen.
2 14-063 Ravi Kumar
16.07.74 SC 659 Gen.
3 14-008 Pradeep
Kumar 05.01.76 OBC 650 Gen.
4 14-059 Sanjay Kumar
01.01.78 OBC 645 OBC 5 14-004 Chandra Pal Singh 12.05.78 SC 611 SC 6 14-129
Amit Vaish 16.07.74 OC 611 Gen.
7 14-058 Kamlesh
Kumar Maurya 02.07.80 OBC 608 Gen.
8 14-112 Prem Pal 02.01.79
OBC 600 OBC 9 14-085 Abhisek Shukla 01.08.79 OC 596 Gen.
10 14-151 Jitendra
Pal Gangwar 21.04.79 OBC 589 SC"
3 It is furthermore
not in dispute that Shri Pradeep Kumar and Shri Kamlesh Kumar Maurya, whose
names appear at Serial No.3 and 7 at the said select list did not join their
posts. First respondent belongs to General Category candidate whereas the
second respondent belongs to Scheduled Castes category candidate.
The selected
candidates were sent for training for a period of two months. They had,
however, been given placement orders only on 29.8.2003. Having come to learn
that two of the select list candidates had not joined, appellants made
representations on or about 12.9.2003 and 20.9.2003 respectively. The said
representations were, however, rejected only on the premise that there was no
provision in the Recruitment Rules for maintaining such a waitlist.
4. Appellants filed a
writ petition before the Allahabad High Court praying, inter alia, for the
following reliefs :
"Issue a writ,
order or direction in the nature of certiorari quashing the impugned letter
dated 24.11.2003, issued by the Respondents.
(Annexure-7) Issue a
writ, order or direction in the nature of mandamus directing the Respondents to
issue appointment letters to the Petitioners, in the light of the result
declared by the respondents."
5. In the affidavit
filed on behalf of the appellant herein and affirmed by one Shri B.S. Bhandari,
it was averred :
"That in reply
to the contents of para 10, 11 and 12 of the writ petition, it is stated that
there is no provision of waiting list by the department."
6. By reason of a
judgment and order dated 1.12.2004, a learned Single Judge of the High Court
noticed that most of the averments made in the writ petition had not been
traversed and, thus, the same would be deemed to have been admitted. The writ
petition was, therefore, allowed, directing :
"In the result,
the writ petition stands allowed.
The order dated
26.9.2003/24.11.2003 passed on the representation of the petitioner, is
quashed.
The petitioners would
be entitled to be given appointment on the post of Telecom Technical Assistants
under Telecom District Manager, Pilibhit in pursuance to the select list dated
05.08.2002. There will be no order as to cost."
7. An intra court
appeal was preferred thereagainst and by reason of the impugned judgment, the
order of the learned Single Judge was modified to the following effect :
"The learned
Single Judge has allowed the writ petition vide judgment and order dated
01.12.2004 issuing a direction to the present appellants to appoint the
respondents No.1 and 2 on the post of Telecom Technical Assistants under
Telecom 5 District Manager, Pilibhit, as their names appeared in the waiting
list at serial Nos.1 and 2, as two persons from the select list did not join.
The learned Single Judge has held that the present appellants did not file the
counter affidavit in a proper manner and the denial was not in accordance with
the mandate of the Order VIII Rule 5 of the Code of Civil Procedure. The
averments made in the petition were thereafter found to be correct. No interference
is required with the judgment and order of the learned Judge except to the
extent that the learned Single Judge should not have issued a direction to the
appellants to appoint the petitioners straightaway.
In our opinion the
present appellants should have been directed to consider the candidates whose
names appeared in the waiting list against those vacancies.
In view of the above,
the impugned judgment and order dated 01.12.2004 is modified to the extent that
the present appellants shall consider to fill up the two vacancies which
remained unfilled because two selected persons did not join by offering the
appointment letters to the respondents who are in the waiting list at serial
Nos.1 and 2 within a period of six weeks from today."
8. As indicated
hereinbefore, by an order dated 3.1.2006, the review application filed by the
appellants has been dismissed.
9. Mr. K.C. Kaushik,
learned counsel appearing on behalf of the appellant, would contend :
6 i) There being no
provision in the statutory rules for preparing a select list with waitlist
candidates, the impugned judgment cannot be sustained.
ii) The life of the
panel being one year, it was impermissible for the High Court to direct the
appellant to consider the candidatures of the appellants.
10. Mr. Navin Chawla,
learned counsel appearing on behalf of the respondent, on the other hand, would
support the impugned judgment.
11. In their Writ
Petition, the respondents had categorically stated that only on 29.8.2003,
appellant had cleared the names of six persons and were permitted to join.
Paragraph 4 of the counter affidavit, traversing the averments made in
paragraph 7 of the writ petition, reads as under :
"That in reply
to the contents of para 7 of the writ petition it is stated that only eight
candidates were selected in merit list they have appointed."
In paragraph 13 of
their writ petition, the respondents averred :
"That in this
regard, appointments made at other places, waitlisted persons have been given
appointment. One of such place, i.e., meerut, one Shri Parvesh Malhotra bearing
Roll No.1880 and Shri Nirmal Singh bearing Roll No.1575, who were not in the
first 20, but subsequently they have been given appointment being on the Wait
7 Listed Panel. A copy of the aforesaid result is annexed as Annexure-9 to this
writ petiton."
The said averments
have been traversed in paragraph 8 of the affidavit, stating :
"That contents
of para 13 of the writ petition are not correct as stated hence denied. It is
stated that there is no waiting list in Pilibhit."
12. There cannot,
therefore, be any doubt whatsoever that the allegations contained in the writ
petition that in all other districts the Selection Committee had prepared
`waitlist' and a large number of appointments had been made therefrom were not
specifically been denied
13. Appellant is a
`State' within the meaning of Article 12 of the Constitution of India. It must
have its law department. It is, therefore, difficult to conceive that the
concerned officers of the department could not place the factual and legal
position before the Court as has been contended before us.
14. Mr. Kaushik
furthermore contended that one of the vacancies had been earmarked for a
handicapped candidate and, thus, it is not possible to comply with the order of
the High Court. Such a decision must have been 8 taken only in the year 2003.
Such appointment of a handicapped person, indisputably, is de' hors the
advertisement.
15. We, therefore, do
not find any error in the impugned judgments.
We are, however, not
oblivious of the fact that ordinarily the life of such a panel is one year as
has been observed by this Court in Girdhar Kumar Dadhich & Anr. v. State of
Rajasthan & Anr. [2009 (2) SCALE 98].
However, the select
list was approved by the appellant only in August 2003 and the respondents
having made representations within one year therefrom in our opinion, the said
requirement also stands satisfied in the instant case.
Moreover, such a
question had not ever been raised before the courts below.
Had such a question
been raised, the respondent could have dealt with the same. {See Amlan Jyoti
Borooah v. State of Assam & Ors. [2009 (2) SCALE 56]}.
16. For the reasons
aforementioned, we do not find any merit in this appeal. It is dismissed
accordingly. As the appellants have already deposited a sum of Rs.20,000/-
pursuant to this Court's order dated 24.4.2006, we do not make any order as to
costs.
.....................................J.
[S.B. Sinha]
.....................................J.
[Dr. Mukundakam Sharma]
New
Delhi;
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