Holding

The Supreme Court held that the wait‑list candidates were entitled to appointment, the panel’s one‑year validity was met, and the reservation for a handicapped candidate was de hors the advertisement, thus dismissing the appeal.

Summary

The case concerned two candidates placed on a wait‑list after a BSNL recruitment advertisement for General, OBC and SC posts. When two selected candidates failed to join, the wait‑list candidates applied for appointment, but the department rejected their claim citing the absence of a provision for a wait‑list in the recruitment rules. The High Court initially ordered their appointment, later modifying the order to direct the department to consider filling the two vacancies with the wait‑list candidates. On appeal, the Supreme Court held that the wait‑list candidates were entitled to appointment, that the one‑year life of the panel was satisfied as the select list was approved in August 2003 and representations were made within a year, and that the reservation of a vacancy for a handicapped candidate was de hors the advertisement. Consequently, the appeal was dismissed with no error found in the lower courts' judgments.

Issues considered

Whether candidates placed on a wait‑list are entitled to appointment when vacancies arise despite the recruitment rules not expressly providing for a wait‑list.
Whether the one‑year life of a selection panel bars appointment of wait‑list candidates after that period.
Whether a vacancy earmarked for a handicapped candidate, which is de hors the advertisement, prevents appointment of wait‑list candidates.
Whether the High Court's direction to appoint the wait‑list candidates is legally valid.

Subjects

service lawrecruitmentwaitlistappointmentreservationhandicappedpanel lifeselection listBSNLtelecom

Judgment

[2009] 5 S.C.R. 544
-~

A BSNL & ORS.
v.
ABHISHEK SHUKLA & ANR.
(Civil Appeal No. 2239 of 2009)
APRIL 8, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.)

Service Law - Appointment/Selection - Advertisement
for appointment - Post earmarked for General Category, OBC
c and SC - Two of the candidates in the select list, not joining
service - Candidates in wait list of selection list seeking
appointment on the unfilled posts - Appointment denied on
the ground that there existed no provision in statutory rules
for preparing select list with waitlist and that one of the posts
D was reserved for handicapped candidate - Held: The • ~

candidates in the waitlist entitled to appointment - Plea that
in other districts candidates appointed from waitlist not denied
- Reservation for handicapped candidate was de-hors
advertisement - Their candidature can be considered as they
E had made representation within one year from the approval
of select list i.e. before the expiry of life of the panel.

An advertisement was issued by appellant-
Department for recruitment of certain posts. The
advertisement specified that the posts were earmarked -~
F for general category OBC and SC. The Selection
Committee prepared the select list. Names of the
respondents were placed in the waitlist. Appointment was
made in August, 2003. Two of the candidates in the select
list, since did not join the service, the respondents made
G representation in September, 2003, seeking their
appointment. The representation was rejected on the
ground that there was no provision in the Recruitment •·
Rules for maintaining such wait list. Respondent filed writ
petition seeking their appointment Single Judge of High
H 544
BSNL & ORS. v. ABHISHEK SHUKLA & ANR. 545

Court allowing the petition directed the authorities to A
appoint them as per the select list. In intra court appeal,
Division Bench of High Court modified the order,
directing the authorities to consider to fill up the two
unfilled vacancies. Hence the present appeal.
B
Dismissing the appeal, the Court

HELD:1. 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 C
denied. [Para 12] [551-D]

2. 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 D
concerned officers of the department could not place the
factual and legal position before the Court as has been
contended before this court. [Para 13) [551-E]
3. The contention of the appellant that one of the
vacancies had been earmarked for a handicapped E
candidate and, thus, it is not possible to comply with the
order of the High Court is not acceptable. Such a
decision must have been taken only in the year 2003. ·
Such appointment of a handicapped person,
indisputably, is de' hors the advertisement. Therefore, there F
is no error in the impugned judgments. [Paras 14 and 15)
[551-E-G]

4. Ordinarily the life of a panel is one year. However,
the select list was approved by the appellant only in G
August 2003 and the respondents having made
representations within one year therefrom, 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 H
546 SUPREME COURT REPORTS [2009] 5 S.C.R.

"
A raised, the respondent could have dealt with the same.
[Para 15] [551-H; 552-A-B] --::

Girdhar Kumar Dadhich and Anr. v. State of Rajasthan
and Anr. 2009 (2) SCALE 98 and Am/an Jyoti Borooah v.
State of Assam and Ors. 2009 (2) SCALE 56, referred to.
B •
Case Law Reference:
2009 (2) SCALE 98 Referred to. Para 15
2009 (2) SCALE 56 Referred to. Para 15
c
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2239 of 2009.

From the Judgment & Order dated 01.02.2005 of the
Division Bench of the High Court of Judicature at Allahabd in
D the Special Appeal No. 59 of 2005.

K.C. Kaushik, Rahul Kaushik, Shilpi Kaushik and Sarla
Chandra for the Appellants.

E Naveen Chawla for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.

2. This appeal is directed against a judgment and order
F
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
G
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
H Telecom Technical Assistants (General Central Services)
BSNL & ORS. v. ABHISHEK SHUKLA & ANR. 547
[S.B. SINHA, J.] .

District Manager, Pilibhit. In the said advertisement, it was A
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.
B
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.
c
Results were published on 8.8.2002 which is in the
following terms :
'SI Roll Name Date Caste Total Roster
Ne No. Birth
D
1 14-035 Alok Kumar 05.07.78 OBC 724 Gen.
Rathor
2 14-063 Ravi Kumar 16.07.74 SC 659 Gen.
3 14-008 Pradeep Kumar 05.01.76 OBC 650 Gen. E

4 14-059 Sanjay Kumar 01.01.78 OBC 645 OBC
5 14-004 Chandra Pal 12.05.78 SC 611 SC
Singh
F
6 14-129 Amit Vaish 16.07.74 oc 611 Gen.
7 14-058 Kamlesh Kumar 02.07.80 OBC 608 Gen.
.. Maurya
8 14-112 Prem Pal 02.01.79 OBC 600 OBC G

9 14-085 Abhisek Shukla 01.08.79 oc 596 Gen.
0 14-151 Jitendra Pal 21.04.79 OBC 589 sc·
Gangwar
H
548 SUPREME COURT REPORTS [2009] 5 S.C.R.

A It is furthermore not in dispute that Shri Pradeep Kumar
and Shri Kamlesh Kumar Maurya, whose names appear at J
'
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
B 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
c 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.

D 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)
E
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."
F ;...
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
G 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,
H
BSN!.. & ORS. v. ABHISHEK SHUKLA & ANR. 549
-,;. [S.a. SINHA, J.] ·

thus, the same would be deemed to have been admitted. The A
" 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 8
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 c
by reason of the impugned judgment, the order of th~ 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 D
direction to the present appellants to appoint the
respondents No.1 and 2 on the post of Telecom Technical
·,
Assistants under Telecom 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 E
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
F
~ 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
directio~ to the appellants to appoint the petitioners
straightaway. In our opinion the present appellants should
have been directed to consider the candidates whose G
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 H
550 SUPREME COURT REPORTS [2009] 5 S.C.R.

A 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."
B
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
C of the appellant, would contend :

(i) · There being no provision in the statutory rules for
preparing a select list with waitlist candidates, the

D
(ii)
impugned judgment cannot be sustained.

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.
.·

E 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
F 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
G 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:
H
BSNL & ORS. v. ABHISHEK SHUKLA & ANR. 551
[S.B. SINHA, J.]
"f
~ •I (
'That in this regard, appointments made at other places, A
.,.......--~··· 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 Listed B
~
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 :
c
"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 D
the allegations contained in the writ petition that in all other
districts the Selection Committee had prepared 'waitlist' and
e. 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 E
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.
A F
' 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 taken only in the year
2003. Such appointment of a handicapped person, G
indisputably, is de' hors the advertisement.
y 15. We, therefore, do not find any error in the impugned
judgments.

We are, however, not oblivious of the fact that ordinarily H
552 SUPREME COURT REPORTS [2009] 5 S. C.R.

"'
A the life of such a panel is one year as has been observec '1v
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
B 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 Am/an Jyoti Borooah v. State of Assam & Ors. [2009
c (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
D any order as to costs.
._
'
K.K.T. Appeal dismissed
~