Notification For Vacancies Only An Invitation To Apply | No Indefeasible Right To Appointment For Leftover Posts | J&K High Court Dismisses PO Aspirant’s Plea
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Javed Iqbal Wani has dismissed a writ petition seeking appointment to a bank post on the ground of unfilled vacancies. The Court held that a candidate who neither figures in the select list nor in the waiting list has no enforceable right for consideration against leftover vacancies. The Court stated that selection and appointment cannot be claimed when the candidate had voluntarily participated in the recruitment process subject to its stated terms and conditions, including expiration of the waiting list. The petition was found to be "grossly misconceived" and was accordingly dismissed along with the connected application.
The petitioner, a 24-year-old engineering graduate, had applied for the post of Probationary Officer under the General Category as notified by the respondent bank through advertisement No. JKB/HR-Rectt-2020-27 & 28 dated 06.10.2018. He participated in the recruitment process that included a written test and an interview conducted by the Jammu and Kashmir Bank.
As per the petitioner, although the respondent bank had notified 175 vacancies, only 138 candidates were appointed. He further submitted that out of a waiting list of 18 candidates, only 16 joined, thereby leaving certain posts vacant. The petitioner claimed he had secured higher merit than some candidates and hence was entitled to appointment against one of the remaining unfilled vacancies. He also stated that he submitted a representation to the bank regarding his claim, which went unheeded, compelling him to approach the High Court under Article 226 of the Constitution of India.
The respondents, in their objections, admitted that the petitioner had participated in the selection process. However, they asserted that the petitioner did not qualify for the main selection list or the reserve list. According to the respondent bank, the last candidate selected under the General Category had secured 61.65 marks, and the last candidate in the waiting list had 61.27 marks. The petitioner had secured 61.22 marks, which was below the threshold even for the waiting list.
The bank pointed out that both the selection list and the waiting/reserve list were prepared in accordance with the terms set out in the advertisement notice, which clearly stipulated that appointments could not be made outside these lists. Furthermore, it stated that the waiting/reserve list was valid only up to 31.03.2021, and thereafter expired automatically.
It was also submitted that the advertisement notice provided that candidates who do not appear in either the select or the waiting/reserve list would not be considered for any further process regarding the vacancies for the year 2020-21. The bank stated that since the petitioner had accepted the terms and conditions by participating in the selection process, he could not now seek appointment by challenging those very terms.
The Court reviewed the pleadings and submissions and framed the central issue as whether the petitioner had any enforceable legal right to seek the reliefs claimed in the writ petition.
In addressing this, the Court referred to judicial precedent, quoting the Supreme Court judgment in Shankarsan Dash vs. Union of India, 1991 (3) SCC 47: "It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied."
The Court noted that the law laid down by the Apex Court clarifies that a recruitment notification is merely an invitation to apply and does not grant a legal right to appointment: "Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection, they do not acquire any right to the post."
It also relied on the decision in State of Orissa vs. Bhikari Charan Khuntia, 2003 (10) SCC 144, where the Supreme Court held: "Whether to fill or not to fill up a post, is a policy decision and unless it is arbitrary, the High Court or the Tribunal has no jurisdiction to interfere with such decision of the Government and direct it to make further appointments."
The Court further recorded: "It is an admitted fact that the petitioner did not figure in the select list or the waiting/reserve list notified by the respondent-Bank qua the post in question."
The Court found that the petitioner had secured 61.22 marks as opposed to 61.27 marks secured by the last candidate in the waiting list. The petitioner did not dispute this fact. Moreover, he had responded to the original advertisement and participated in the selection process without raising any objections to the stipulated terms, including the clause that the waiting list would expire on 31.03.2021.
The judgment noted: "Undoubtedly, the petitioner has neither figured in the select list nor in the waiting list, as such, the petitioner cannot, in law, seek his selection and appointment against the leftover vacancies of the post in question."
The Court held that no relief could be granted when a petitioner has voluntarily participated in the process under specific terms: "The petitioner cannot in law seek his selection and appointment against the leftover vacancies... on account of his having voluntarily and without any objection or reservation participated in the process of selection, subject to the terms and conditions set out in the advertisement notice."
The Court delivered its final order stating: "For the foregoing reasons, the writ petition in hand is found to be grossly misconceived and is accordingly dismissed along with the connected application."
The Court thereby denied all reliefs sought by the petitioner and concluded the case without granting any further direction for consideration of appointment.
Advocates Representing the Parties:
For the Petitioners: Mr. Gagan Kohli, Advocate
For the Respondents: Mr. Raman Sharma, Additional Advocate General
Case Title: Sushant Khajuria vs. Jammu and Kashmir Bank and Another
Case Number: WP(C) No. 482/2022
Bench: Justice Javed Iqbal Wani
