Delhi High Court: “No Indefeasible Right” for Waitlisted Candidates—Fresh Advertisement Required for Post-Appointment Vacancies
Kiran Raj
The Delhi High Court has dismissed an appeal challenging the non-appointment of a waitlisted candidate to the post of Assistant Professor at Kalindi College, University of Delhi. The court held that once vacancies have been filled, any subsequent resignation of an appointed candidate creates a fresh vacancy, necessitating a new recruitment process.
The appellant, Dr. Shashi Bhushan, who served as an ad hoc Assistant Professor at Kalindi College from July 21, 2017, to October 29, 2023, applied for a permanent position following an advertisement issued by the college on December 10, 2022. The recruitment process aimed to fill two positions reserved for Scheduled Caste (SC) candidates in the geography department. The appellant participated in the interview conducted on October 27, 2023.
The results of the selection process were announced on October 30, 2023, wherein Ms. Usha Rani and Mr. Jitendra Rishideo were selected. The appellant was placed at the top of the waitlist. Shortly after her appointment, Ms. Usha Rani resigned to join Shivaji College as an Assistant Professor in Geography, leading to a vacancy in Kalindi College. The appellant subsequently claimed entitlement to the vacant position.
Dr. Bhushan relied on an Office Memorandum (OM) dated June 13, 2000, issued by the Department of Personnel & Training (DOPT). The OM stated that vacancies arising from the resignation or death of an incumbent within a year of their appointment should be filled by the next candidate from the waiting list if no fresh panel was available. He argued that this policy should apply to the recruitment process at Kalindi College under the University of Delhi.
When the University declined his request, Dr. Bhushan filed a writ petition (WP(C) 4949/2024) before the High Court, seeking a direction to be appointed in place of the resigning candidate. However, on April 3, 2024, the University of Delhi issued a circular clarifying that vacancies created due to the resignation of selected candidates must be treated as fresh vacancies and required a new recruitment process. The single-judge bench dismissed the writ petition on April 5, 2024, leading to the present appeal.
The division bench, comprising Justice C. Hari Shankar and Justice Anoop Kumar Mendiratta, upheld the single-judge decision. The court stated that "the resignation of a candidate after joining gives rise to a fresh vacancy, which must be filled through a fresh recruitment process." The bench observed that the appellant had no legally enforceable right to be appointed merely because he was at the top of the waitlist.
The court relied on the Supreme Court’s decision in Sudesh Kumar Goyal v. State of Haryana, which held that "if one of the selected candidates joins and then resigns, it gives rise to a fresh vacancy which could not have been filled up without issuing a proper advertisement and following the fresh selection process." The court rejected the appellant’s contention that the judgment was inapplicable due to the presence of a waitlist in the present case.
The bench further observed that the appellant had failed to establish the applicability of the DOPT OM dated June 13, 2000, to the University of Delhi’s recruitment process. It noted that "the onus was on the appellant to establish that the OM applied to the selection in dispute. However, he failed to discharge this onus." The court stated that the university’s ordinances did not recognize the automatic operation of a waitlist beyond the initial appointment stage.
Relying on precedents such as Madan Lal v. State of Jammu & Kashmir and State of Punjab v. Raghbir Chand Sharma, the court reiterated that once the notified vacancies were filled, the select list and waitlist ceased to exist. It stated that "a panel or a waiting list remains in operation only until the selected candidates are appointed and cannot survive thereafter." The court observed that recruitment panels serve a limited purpose and cannot be treated as an indefinite source of appointments beyond the original recruitment cycle.
Additionally, the court referred to State of Karnataka v. Bharthi S., which stated 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 discretion of the Appointing Authority." The court noted that there was no binding rule requiring the University to offer the vacancy to the waitlisted candidate rather than issuing a new advertisement.
The court also addressed the University of Delhi’s April 3, 2024, circular, which explicitly stated that vacancies resulting from resignation, voluntary retirement, or death could not be filled by candidates from the waiting list. The circular clarified that in such cases, the vacancy must be re-advertised. The bench found that this circular was consistent with judicial precedents and applicable rules governing recruitment in educational institutions.
The court further examined the appellant’s claim that the University’s decision not to appoint him was arbitrary and discriminatory. It referred to the Supreme Court judgement in Shankarsan Dash v. Union of India, which held that "a selected candidate has no vested right to appointment unless the applicable rules provide otherwise." The bench observed that merely being in a waitlist did not confer an automatic entitlement to appointment.
The judgment also discussed the principle that recruitment processes should remain transparent and open to competition. The bench stated that "if a vacancy arises after the completion of a recruitment process, it must be re-advertised to ensure fair opportunity to all eligible candidates." It found that the University of Delhi’s decision aligned with this principle, as a fresh advertisement would allow other qualified candidates to apply.
Dismissing the appeal, the court concluded that the appellant had no enforceable claim to the post and that the University acted in accordance with established legal principles by requiring a fresh advertisement for the vacancy. It stated that "the appellant had no indefeasible right to appointment merely because he was first in the waitlist."
The appeal was dismissed with no order as to costs.
Case Title: Dr. Shashi Bhushan v. University of Delhi & Anr.
Neutral Citation: 2025: DHC: 1394 - DB
Case Number: LPA 491/2024
Bench: Justice C. Hari Shankar and Justice Anoop Kumar Mendiratta
[Read/Download order]
