VALLAMPATI SATHISH BABU versus THE STATE OF ANDHRA PRADESH & ORS. on 19 April 2022

SUPREME COURT REPORTS

[2022] 2 S.C.R.

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VALLAMPATI SATHISH BABU

v.

THE STATE OF ANDHRA PRADESH & ORS.

(Civil Appeal No. 2473 of 2022)

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APRIL 19, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Service Law: Andhra Pradesh Direct Recruitment for the postof Teachers (Scheme of Selection) Rules, 2012 – r.16(5) – Selectionprocess for recruitment of teachers – Appellant participated in theCselection process and was placed at 34[th] position – Respondentsdeclared that the candidates upto serial no. 33 (notified vacanices)in the merit list are selected in the available vacancies andaccordingly invited the 33 candidates to appear for counselling –One candidate did not turn up for counselling – Consequently, oneDpost in general category remained unfilled due to non-participationof the said candidate – Appellant sought consideration of hiscandidature which was declined – Tribunal allowed O.A. filed byappellant which decision was reversed by High Court – Henceinstant appeal – Held: As per sub-rule (5) of r.16, the number ofcandidates selected shall not be more than the number of vacanciesEnotified – It also specifically provides that there shall be no waitinglist and posts, if any, unfilled for any reason whatsoever, shall becarried forward for future recruitment – The final selection list of33 candidates was prepared. Thereafter all the selected candidateswere called for counselling, but one of the candidates did not reportFfor counselling – Therefore, said event took place after the finalselection list was prepared and published – As there was norequirement of preparation of a waiting list, the appellant claimingto be the next in the merit cannot claim any appointment as hisname neither figured in the list of the selected candidates nor inany waiting list as there was no provision at all for preparation ofGthe waiting list – Sub-rule(5) of r.16 is very clear – Therefore, thepost remained unfilled and that post has to be carried forward forthe next recruitment – High Court was correct in reversing the orderof Tribunal.

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Dismissing the appeal, the Court

Held: 1. On a fair reading of Rule 16 of the Rules, 2012read with the Guidelines once the final selection list is prepared,there shall be no waiting list and posts, if any, are unfilled for anyreason whatsoever, shall be carried forward for future recruitmentas per sub-Rule (5) of Rule 16 of the Rules, 2012. In the presentcase, the final selection list of 33 candidates was prepared.Thereafter all the selected candidates were called for counselling,but one of the candidates did not report for counselling. Theaforesaid event took place after the final selection list wasprepared and published. As there was no requirement ofpreparation of a waiting list, the appellant claiming to be the nextin the merit cannot claim any appointment as his name neitherfigured in the list of the selected candidates nor in any waitinglist as there was no provision at all for preparation of the waitinglist. [Paras 7.3, 7.4][1090-A-C]

2. The appellant could have claimed the appointment tothe post which remained unfilled provided there is a provisionfor waiting list as per the statutory provision. In absence of anyspecific provision for waiting list and on the contrary, there beinga specific provision that there shall not be any waiting list andthat the post remaining unfilled on any ground shall have to becarried forward for the next recruitment. The appellant, thus,had no right to claim any appointment to the post which remainedunfilled. [Para 7.5][1090-D-F]

3. Now, the submission on behalf of the appellant that asper sub-rule(5) of Rule 16, all the 33 posts notified are requiredto be filled is concerned, the same has no substance. Sub-rule (5)of Rule 16 is required to be read as a whole and in its entiretyand the same is required to be read alongwith the Guidelinesissued. What is provided under sub-rule (5) of Rule 16 is that thenumber of candidates selected shall not be more than the numberof vacancies notified. However, it further provides that there shallbe no waiting list and posts, if any, unfilled for any reasonwhatsoever shall be carried forward for future recruitment.Therefore, there shall not be any appointment of more than the A

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Anumber of vacancies notified but that does not mean to prepareand operate the waiting list, which otherwise is specifically notprovided for under the Rules, 2012. [Para 8][1090-H; 1091-A-C]

Bihar State Electricity Board v. Suresh Prasad & Ors.,(2004) 2 SCC 681; State of Andhra Pradesh, rep. byBits Secretary, Education Department and Ors. v. SamiulaShareef and Ors., 2014 (1) ALT 165 DB – relied on.

4. Applying the law laid down by this Court in the case ofSuresh Prasad and Ors. to the facts of the case on hand andconsidering the statutory provisions contained in Rule 16 of theCRules, 2012 read with the Guidelines, the appellant cannot claimappointment on the unfilled vacancy being next below thecandidate in the merit list. If the submission on behalf of theappellant is accepted, in that case, it will lead to providing forpreparation of a waiting list, which otherwise is not permissibleas per sub-rule (5) of Rule 16. If the same is permitted, in thatDcase, it will be directing the respondents to act contrary to thestatutory provisions. Therefore, the High Court has notcommitted any error in refusing to appoint the appellant to thepost which remained unfilled due to one of the selected candidatesin the final selection list not appearing for counselling. TheEimpugned judgment and order passed by the High Court isabsolutely in consonance with the relevant statutory provisions.[Para 9][1091-E-H]

District Educational Officer & Member Convenor,District Selection Committee, Nizamabad & Ors. v. B.FAnnapurna Writ Petition No. 21306 of 2005 – referredto.

Case Law Reference

(2004) 2 SCC 681relied onPara 4.4

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2473Gof 2022.

From the Judgment and Order dated 20.07.2021 of the High Courtof Andhra Pradesh at Amaravati in Writ Petition No.12144 of 2015.

Ms. V. Mohana, Sr. Adv., Sadineni Ravi Kumar, Advs. for theAppellant.

Mahfooz Ahsan Nazki, Polanki Gowtham, Shaik MohamadHaneef, T. Vijaya Bhaskar Reddy, K. V. Girish Chowdary, Ms. RajeswariMukherjee, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Andhra Pradesh at Amravati inWrit Petition No. 12144 of 2015 by which the High Court has allowedthe said writ petition preferred by the State and has quashed and setaside the order passed by the A.P. Administrative Tribunal, Hyderabadin O.A. No.4916 of 2013, the original applicant has preferred the presentappeal.

2. The facts leading to the present appeal in nutshell are as under:-

2.1 That the appellant herein participated in the selection processcarried out by the respondents for recruitment of Teachers under theNotification dated 30.01.2012 called as DSC-2012. Thirty-three (33)posts were notified and the recruitment process was initiated for thenotified 33 vacancies. The appointments were governed by the AndhraPradesh Direct Recruitment for the post of Teachers (Scheme ofSelection) Rules, 2012 (hereinafter referred to as “Rules, 2012”), whichwere framed in exercise of the powers conferred by Article 309 of theConstitution of India r/w sub-sections (3) and (4) of Section 169, sub-sections (3) and (4) of Section 195 and Section 243 of the Andhra PradeshPanchayat Raj Act. Rule 16 of the Rules, 2012 provided for preparationof selection lists. As per sub-rule (5) ofRule 16 the number of candidatesselected shall not be more than the number of vacancies notified. It alsospecifically provided that there shall be no waiting list and posts, if any,unfilled for any reason whatsoever shall be carried forward for futurerecruitment.

2.2 That vide G.O. Ms. No. 91 dated 03.11.2012, the State issueddetailed guidelines. Clause 8 provided for verification of certificates andpreparation of select lists (which shall be dealt with hereinbelow).

2.3 The appellant participated in the said selection process,however, secured 58.08 marks and placed at 34[th] position. The A

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Arespondents declared that the candidates upto serial No. 33 (notifiedvacancies) in the merit list are being selected in the available vacanciesand accordingly invited the 33 candidates to appear for counselling. Onecandidate, who secured 18[th] rank with 60.83 marks did not turn up forcounselling that was held on 28.12.2012. Consequently, one post in generalcategory remained unfilled due to the non-participation of the saidBcandidate. The appellant made a representation before the respondentsseeking for consideration of his candidature relying upon para 8 of theGuidelines issued under G.O. Ms. No. 91 dated 03.11.2012. As theappellant was not offered the employment, the appellant approached theTribunal by filing O.A. No. 4916 of 2013 seeking a direction to theCrespondents to appoint him as Secondary Grade Teacher (S.G.T.) in theunfilled vacancy. The Tribunal allowed the said O.A. holding that theappellant is entitled for appointment as per para 8 of the Guidelines issuedunder G.O. Ms. No. 91 dated 03.11.2012.

2.4 Feeling aggrieved and dissatisfied with the order passed byDthe Tribunal, the State preferred writ petition before the High Court andby the impugned judgment and order, the High Court has allowed thesaid writ petition and has quashed and set aside the order passed by theAdministrative Tribunal.

2.5 Feeling aggrieved and dissatisfied with the impugned judgmentEand order passed by the High Court, the original applicant has preferredthe present appeal.

3. Ms. V. Mohana, learned Senior Advocate appearing on behalfof the appellant has vehemently submitted that in the present case, 33posts were notified; therefore, until 33 posts are filled in, it cannot beFsaid that the selection process is complete.

3.1 It is submitted that as per Rule 16(5) of Rules, 2012, the numberof candidates selected shall not be more than the number of vacanciesnotified. Hence, in the present case, the selection was incomplete sinceGone of the candidates did not turn up for counselling and receiving theorder of selection. Therefore, the appellant being the next candidate asper merit namely, at the 34[th]position, was entitled to the appointment outof 33 notified vacancies, as one of the candidates did not turn up evenfor counselling and the vacancy had to be filled by the next meritoriouscandidate, namely the appellant herein.H

3.2 It is submitted that as per the Guidelines, the verification hasto be done of the candidates in the provisional selection list and finally,after counselling, the final list will have to be published. It is submittedthat, however, a reading of clauses of the Guidelines together with theRule show that until all selections are made, i.e., all vacancies are filled,the final selection list is not complete and the process is incomplete.

3.3 It is further submitted that Rule 16(5) of the Rules, 2012provides preparation of selection list. It is submitted that as per the saidRule selection has to be made equal to the number of vacancies. However,there will be no waiting list and if there is any vacancy due to some otherreason, then that will be carried forward. It is submitted that the situationcontemplated in that Rule is like resignations, non-joining after getting anappointment order, untimely death after joining etc. It is submitted thathowever, in the present case, there was no appointment order issued toone of the selected candidates and hence the selection was not complete.It is submitted that on a fair, meaningful and combined reading of theRule along with the Guidelines, it shows that the final selection list couldhave been prepared and finalized only after verification and counsellingand that the number of selected candidates cannot exceed the totalnumber of vacancies.

3.4 It is further submitted by Ms. Mohana, learned SeniorAdvocate appearing on behalf of the appellant that the very same rulewhich existed under the Rules, 2000 and Rule 13 was the subject matterof interpretation before the High Court in Writ Petition No. 21306 of2005 – (District Educational Officer & Member Convenor, DistrictSelection Committee, Nizamabad & Ors. Vs. B. Annapurna),wherein it was held that due to the mistake on the part of the employer;a prospective and potential candidate cannot be allowed to suffer. It issubmitted that in the said decision, it was held by the High Court that ifthere is any unfilled vacant post, the same is necessarily to be filled,subject to the number of vacancies vis-à-vis the number of candidatesso selected on merit. It is submitted that the Special Leave Petition againstthe said judgment has been dismissed by this Court.

3.5 It is further submitted that in the present case, the appellantimmediately approached the Tribunal seeking redressal of his grievancewithout any delay. That the appellant approached the Tribunal since hecame to know that one of the candidates had not appeared for counsellingand one post remained unfilled. That the learned Tribunal passed a correct A

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Aand reasoned order allowing the O.A. Therefore, the High Court oughtnot to have interfered with the findings of the Tribunal.

3.6 It is contended that the learned Division Bench of the HighCourt has merely relied upon the decision of the High Court in the caseof State of Andhra Pradesh, rep. by its Secretary, EducationBDepartment and Ors. Vs. Samiula Shareef and Ors., 2014 (1) ALT165 DB, butthe said judgment is clearly distinguishable on facts of thepresent case. That was a case where the allegations against therespondents were made much after the appointment and pursuant to anenquiry,their services were terminated and against which vacancies, theappointments were sought to be made by the unsuccessful candidates.CIt is submitted that in the present case, no appointment order was issuedin respect of one post and therefore selection remained unfilled.Therefore, the Division Bench of the High Court has clearly erred inquashing and setting aside the well-reasoned judgment and order of theTribunal by solely relying upon the decision in the case of SamiulaDShareef (supra), which is not correct.

3.7 It is further urged by Ms. Mohana, learned Senior Advocateappearing on behalf of the appellant that the appellant having crossedthe age limit for appearing in any further examination, this Court maydirect the respondents for considering his case as a one-time measure.

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4. Present appeal is vehemently opposed by Shri Mahfooz AhsanNazki, learned counsel appearing on behalf of the respondents. A detailedcounter affidavit is also filed on behalf of the State.

4.1 It is vehemently submitted by Shri Nazki, learned Counselappearing on behalf of the State that, in the present case, the State hasFfollowed the detailed procedure providedunder Rule 8, which reads asunder:-

(i) Under Rule 8 (a), a provisional list of vacancies is to benotified and a venue is to be fixed for verification ofcandidates; G

(ii) Thereafter, Rules 8(a) to 8(d) provide the procedure forverification;

(iii) In terms of Rule 8(e), the provisional list is required to bere-drawn in case any candidate is to found to be ineligiblein the process envisaged under Rules 8(a) to 8(d);H

[M. R. SHAH, J.]

(iv) Under Rule 8(f), a further verification is envisaged in respectof such candidates who may have been included as a resultof revision of the provisional lists under Rules 8(a) to 8(e);

(v) Rule 8(g) envisages publication of a final selection list uponcompletion of the verification process.

4.2 It is submitted that in the present case, a provisional list wasnotified on 01.12.2012. Thereafter verification of candidates took place.Upon verification of the candidates, the provisional list was revised anda revised provisional list was published on 12.12.2012.Subsequently,pursuant to further verification, a final select list was drawn under Rule8(g). It is submitted that in terms of Rule 8(g), once the final selectionlist is published, there can be no waiting list.

4.3 It is further submitted that in the instant case, after the finalselection list was published on 25.12.2012, one candidate, whose namewas mentioned in the final list failed to appear at the time of counselling.It is submitted that his failure to appear for counselling was only afterthe final selection list was published. That the respondents are bound byRule 8(g) in terms whereof, there can be no waiting list and thus, noappointment order was issued in favour of the appellant.

4.4 Relying upon the decision of this court in the case of BiharState Electricity Board Vs. Suresh Prasad &Ors., (2004) 2 SCC681, it is vehemently submitted by Shri Nazki, learned counsel appearingon behalf of the respondents - State that as held by this Court in theaforesaid decision where the Rules do not envisage drawing up of awaiting list, no wait listed candidate could be appointed as a result ofnon-joining of a selected candidate.

4.5 Making the above submissions and relying upon the aforesaiddecision, it is prayed to dismiss the present appeal.

5. Heard the learned counsel for the respective parties at length.

6. The selection process was carried out by the respondents forrecruitment of teachers. 33 posts were notified and therefore therecruitment process was started for the notified 33 vacancies. The meritlist/select list of 33 candidates was published. However, one of theselected candidates did not appear for counselling and therefore, onepost remained vacant. The appellant herein being the next meritorious

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Acandidate, being at Serial No. 34, is claiming the appointment to the postwhich remained unfilled due to one selected candidate, whodid not appearfor counselling. The Tribunal allowed the said claim. However, the HighCourt by the impugned judgment and order has set aside the order passedby the Tribunal and has held thatconsidering the relevant statutoryprovisions and the Guidelines for the purpose of preparation of the selectBlist, the appellant shall not have any claim to the post, which remainedunfilled, as there was no provision for the waiting list. Therefore, theshort question, which is posed for the consideration of this Court is,whether, to the post which remained unfilled due to one selected candidatenot appearing for counselling, the appellant is entitled to the appointmentCon the said post.

7. While considering the aforesaid issue/question, the relevantstatutory rule and the Guidelines are required to be referred to.

7.1 Rule 16 of the Rules, 2012 is in respect of preparation of theDselect list. Sub-Rule(5) of Rule 16 of the Rules, 2012, which is relevantfor the purpose of this case reads as under:- “(5) The number of candidates selected shall not be more thanthe number of vacancies notified. There shall be no waiting listand posts if any unfilled for any reason whatsoever shall be carriedforward for future recruitment.”E

7.2 The Guidelines have been issued by the State Government forselection process including the preparation of selection list, conduct ofcounselling and issue of appointment and posting orders to the selectedcandidates under G.O. Ms. No. 91 dated 03.11.2012. Paragraph 8 of theFsaid Guidelines is relevant for our purpose, which reads as under:- “8. Verification Of Certificates:

a) The District Educational Officer shall prepare with the approvalof the District Selection Committee a provisional list to the extentof vacancies notified, for each category of post notified in DSC –G2012 on the basis of the merit list and publish the same on thenotice boards of the offices of the District Collector and DistrictEducational Officer and also on the designated website, alongwith the date, time and venue fixed for verification of certificates.The District Educational Officer shall also issue a press note inthe local news papers for wide publicity in this regard.

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VALLAMPATI SATHISH BABU v. THE STATE OF ANDHRA PRADESH[M. R. SHAH, J.]

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VALLAMPATI SATHISH BABU v. THE STATE OF ANDHRA PRADESH[M. R. SHAH, J.]

b) As the processing of applications for DSC-2012 is made onlineso far, the process of verification of certificates of candidatesincluded in provisional list may, in certain cases, also result in,

i.Failure of the candidate to attend for verification ofcertificates.

ii.Failure of the candidate to produce the originalcertificate/s relevant to his/her eligibility and selection.

iii.Inclusion of a candidate in the provisional list of morethan one category.

c) As regards b(i) above, the District Educational Officer shallsend a personal intimation to the address furnished by the candidate,to attend along with all relevant original certificates on the datefixed for the said purpose, as a final chance.

d) In case the candidate fails to attend even on the date so fixed,he/she shall forfeit his/her right to be considered for selection.

e) In the event of b(ii) & b(iii) and (d) above, the provisional listshall be redrawn by the District Selection Committee drawingnext candidate/s from the merit list to the extent necessary,however, subject to the condition that the number of candidatesincluded shall not be more than the number of vacancies notifiedfor that particular category. In so far as the candidate covered byb(iii) above, this exercise shall be done only after obtaining theoption of such candidate at the time of verification of certificatesitself.

f) The further verification of certificates, if any required as under(e) above shall be done, after due intimation to the candidatesconcerned, on the date fixed for the said purpose.

g) After due completion of the above exercise the District SelectionCommittee shall prepare the final selection list of the candidatesfor all categories of the teachers. Once the final selection list isprepared, there shall be no waiting list and posts if any unfiled forany reason whatsoever shall be carried forward for futurerecruitment as per sub rule (5) of Rule 16 of the Andhra PradeshDirect Recruitment for the posts of teachers (scheme of selection)Rules, 2012.”

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7.3 On a fair reading of Rule 16 of the Rules, 2012 read with theGuidelines referred to hereinabove, once the final selection list is prepared,there shall be no waiting list and posts, if any, are unfilled for any reasonwhatsoever, shall be carried forward for future recruitment as per sub-Rule (5) of Rule 16 of the Rules, 2012.

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B7.4 In the present case, the final selection list of 33 candidateswas prepared. Thereafter all the selected candidates were called forcounselling, but one of the candidates did not report for counselling.The aforesaid event took place after the final selection list was preparedand published. As there was no requirement of preparation of a waitinglist, the appellant claiming to be the next in the merit cannot claim anyCappointment as his name neither figured in the list of the selectedcandidates nor in any waiting list as there was no provision at all forpreparation of the waiting list. Sub-rule(5) of Rule 16 is very clear.Therefore, the post remained unfilled due to one of the candidates inthe final list did not appear for counselling and/or accepted theDemployment. Hence, that post has to be carried forward for the next recruitment.

7.5 The appellant could have claimed the appointment to the postwhichremained unfilled provided there is a provision for waiting list asper the statutory provision. In absence of any specific provision for waitingElist and on the contrary, there being a specific provision that there shallnot be any waiting list and that the post remaining unfilled on any groundshall have to be carried forward for the next recruitment. The appellantherein, thus, had no right to claim any appointment to the post whichremained unfilled.

F7.6 In the present case, the first provisional list was published on01.12.2012. Thereafter, a revised provisional list was published on12.12.2012 and subsequently a final selection list was published on25.12.2012 of 33 selected candidates and the candidate, who did notappear for counselling was one of the candidates in the final selectionlist dated 25.12.2012. Therefore, once there was no provision for waitingGlist, the post, which remained unfilled due to one of the candidates in thefinal selection list not appearing for counselling will have to be carriedforward to the next recruitment as per sub-rule(5) of Rule 16.

8. Now, the submission on behalf of the appellant that as per sub-rule(5) of Rule 16, all the 33 posts notified are required to be filled is H

concerned, the same has no substance. Sub-rule (5) of Rule 16 is requiredto be read as a whole and in its entirety and the same is required to beread alongwith the Guidelines issued. What is provided under sub-rule(5) of Rule 16 is that the number of candidates selected shall not bemore than the number of vacancies notified. However, it further providesthat there shall be no waiting list and posts, if any, unfilled for any reasonwhatsoever shall be carried forward for future recruitment.Therefore,there shall not be any appointment of more than the number ofvacancies notifiedbut that does not mean to prepare and operate thewaiting list, which otherwise is specifically not provided for under theRules, 2012.

8.1 An identical question came to be considered by this Court inthe case of Suresh Prasad and Ors. (supra). In the said decision, it isspecifically observed and held that even in case candidates selected forappointment have not joined, in the absence of any statutory rules to thecontrary, the employer is not bound to offer the unfilled vacancy to thecandidates next below the said candidates in the merit list. It is alsofurther held that in the absence of any provision, the employer is notbound to prepare a waiting list in addition to the panel of selectedcandidates and to appoint the candidates from the waiting list in case thecandidates from the panel do not join.The aforesaid decision of this Courthas been subsequently followed by the Andhra Pradesh High Court inthe case of Samiula Shareef and Ors. (supra)

9. Applying the law laid down by this Court in the case of SureshPrasad and Ors. (supra) to the facts of the case on hand andconsidering the statutory provisions contained in Rule 16 of the Rules,2012 read with the Guidelines, we are of the view that the appellantcannot claim appointment on the unfilled vacancy being next below thecandidate in the merit list. If the submission on behalf of the appellant isaccepted, in that case, it will lead to providing for preparation of a waitinglist, which otherwise is not permissible as per sub-rule (5) of Rule 16. Ifthe same is permitted, in that case, it will be directing the respondents toact contrary to the statutory provisions. Therefore, the High Court hasnot committed any error in refusing to appoint the appellant to the postwhich remained unfilled due to one of the selected candidates in thefinal selection list not appearing for counselling. The impugned judgmentand order passed by the High Court is absolutely in consonance with therelevant statutory provisions with which we agree.

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[2022] 2 S.C.R.

AIn view of the above discussion and for the reasons stated above,present appeal fails and the same deserves to be dismissed and isaccordingly dismissed. However, in the facts and circumstances of thecase, there shall be no order as to costs.

BDevika Gujral

Appeal dismissed.

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