Case title: Dr. Shashi Bhushan v. University of Delhi and Anr.
Case no: W.P.(C) 4949/2024 & CM APPL. 20278/2024
Dated on: 05th April 2024
Quorum: Hon’ble Mr. Justice Tushar Rao Gedela.
Facts of the case:
A Mandamus writ petition under Article 226, of the Indian constitution,1950 has been filed against the Respondents by the Petitioner to appoint him as a Assistant Professor in the Department of Geography at the Respondent’s College. Mr. Chimni, appearing for the petitioner submits that the petitioner had participated in the recruitment process for the post of Assistant Professor of the Department of Geography, Kalindi College, University of Delhi. He says that the petitioner was the first candidate in the waitlist. There was a candidate named Ms Usha Rani who was at Sl. No.1 in the list of selected candidates was offered the appointment and had consequently joined the College at the Geography Department as an Assistant Professor. But, she had resigned from the Respondent’s College and joined another College with the same post. He says that the post of the assistant professor allotted for the scheduled caste was left vacant after the resignation of Ms. Usha Rani. He submits that as the petitioner is the first candidate in the waiting list he had the right to be offered with the appointment to the said vacant post. As, that was not done the following writ petition was filed.
Issues:
Whether a Candidate placed in waiting list be offered appointment upon resignation of the candidate who joined the post and later resigned?
Legal provisions:
Article 226 of the Indian Constitution- Power of High Courts to issue certain writs.
Contentions of the appellant:
Mr. Chimni the counsel appearing for the petitioner says that the Petitioner had participated in the recruitment process for the Assistant Professor of the Department of Geography, Kalinidi College, University of Delhi. After the selection the petitioner was the first in the candidate list, he submits that a candidate named Ms. Usha Rani had also participated for the same and she was selected and started working in the said department. But, this said candidate resigned from the Respondent’s College subsequently and had gotten a new job with the same post. He says that the post of the Assistant Professor allotted for the scheduled caste was vacant after the resignation of the candidate. He submits that as the petitioner was the first candidate in the waiting list had a right to be offered with the appointment with the said post. Mr. Chimni says that the respondent is under the obligation to reserve the waitlisted panels on the basis of the selection, particularly when the incumbent had just resigned leaving the post vacant. The respondent had addressed that he would fill up the vacant position by selecting from the waitlist. Mr. Chimni says that the same has been violated.
Contentions of the respondent:
Mr. Mathur states that the university had clearly stated that an offer to the Assistant Professor in the waitlisted candidate category created on the resignation of the candidate who had joined to the said post, and later resigned, it would again have to be advertised for such vacant post following the processes and procedures that are envisioned under the directives of the university. In Sudesh Kumar Goyal vs. State of Haryana and Others reported in (2023) 10 SCC 54, the Supreme Court held that a person cannot seek a right against a vacancy caused due to the resignation of the selected candidate. If a selected candidate joins and the resigns, it creates a fresh vacancy that must be filled through a fresh advertisement and selection process. With this case as precedent in the present case also the petitioner seeks offer from the vacancy on the resignation of the previously selected candidate. Mr. Mathur says that the petitioner has no cause of action.
Courts analysis and judgement:
According to the Selection committee under clause 7 (4-a) of Ordinance XVIII of the university offers a appointment to the post of Assistant Professor to the waitlisted candidate when there is a vacancy that has been created by the resignation of the candidate who joined the post and later resigned. In such cases, it requires to issue a fresh advertisement following the processes and due procedures of the University. The candidates can be given appointment to the said post if the selected candidate did not join in the given timeframe. Thus, the said post which has fallen vacant due to any reasons cannot be filled from the position in the waitlist. If the Resignation of selected candidate. Death/VRS/Resignation of an employee, Post has fallen vacant due to the incumbent appointment at any other higher position/principal etc. In Subha B. Nair v. State of Kerala A decision on the part of an employer whether to fill up the existing vacancies or not is within its domain. On this limited ground in the absence of discrimination or arbitrariness, a writ court ordinarily would not interfere in such matters. Further, Mandamus cannot be issued to direct the Government or the State to fill up certain or all vacancies. The discretion to fill or not to fill vacancies lies with the Government. When a selected candidate in the final selection list has only a right of consideration, then the candidates who are in wait list would not even have that right, which is subject to rules/notification issued. The petitioner could not establish that he has derived the right from any rule/statute or an ordinance. Hence, the position that arises from all the above decisions is that the duty to fill up vacancies from waiting list can arise only on the basis of a mandatory rule. If no such mandate exists, the decision to fill all the vacancies from the Additional List, is left to the State. However, it needs to be added that State cannot act arbitrarily, and its action can be judicially reviewed. It is clear that the petitioner has no ground to maintain the writ petition. Consequently, the writ petition is dismissed.
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Judgement reviewed by- Parvathy P.V.
Click here to read the judgement
Decision to fill vacancies from the additional list, is state’s prerogative- Delhi High Court.
