{W.P.(S)Nos.7113/2016 & 3781/2018} 2025:CGHC:11535 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 7113 of 2016 Jitendra Kumar Baweja, S/o Shri Bhim Singh Baweja, Aged about 33 years, Selected Candidate in Waiting List S.No.5, Presently working on Daily Wages on the post of Data Entry Operator in the Office of Public Works Department, Raipur, Tahsil & District Raipur, Chhattisgarh, Permanent Address:- Bedi Traders, Sankanwaram Chowk, Katora Talab, Raipur, Chhattisgarh --- Petitioner versus 1. The State of Chhattisgarh, Through the Secretary, General Administration Department, Mahanadi Bhawan, Naya Raipur, District Raipur, Chhattisgarh 2. The Secretary, Public Works Department, State of Chhattisgarh, Mahanadi Bhawan, Naya Raipur, District Raipur, Chhattisgarh 3. The Engineer-in-Chief, Public Works Department, Sirpur Bhawan, Raipur, Tahsil & District Raipur, Chhattisgarh 4. The Executive Engineer, Public Works Department, Electrical and Mechanical Division, Sirpur Bhawan, Raipur, Tahsil & District Raipur, Chhattisgarh 5. Vibhash Chand Pandey, S/o Shri Sanat Kumar Pandey, Selected Candidate in Waiting List S.No.1, C/o Subodh Kumar Tiwari, House No.25/546, Sitla Mandir Road, Kankalipara, Raipur, Tahsil & District Raipur, Chhattisgarh 6. Ajamal Jawed, S/o Shri Abdul Wahab, Selected Candidate in Waiting List S.No.2, House No.40/1125, White Photocopy Center, Jhanda Chouk, Sanjay Nagar, Raipur, Tahsil & District Raipur, Chhattisgarh SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.03.10 17:23:11 +0530 {W.P.(S)Nos.7113/2016 & 3781/2018} 7. Rajnikant Yadav, S/o Shri Gopal Yadav, Selected Candidate in Waiting List S.No.3, Rajendranagar, Shiv Chowk, Near Pani Tanki, Post Ravi Gram, Raipur, Tahsil & District Raipur, Chhattisgarh, Pin 492006 8. Rohit Choudhary, S/o Shri Gopi Chaudhary, Selected Candidate in Waiting List S.No.4, Raja Talab, Gandhi Chouk, In Front Street of Sanskruti S.T.D./P.C.O., Raipur, Tahsil & District Raipur, Chhattisgarh, Pin 492001 --- Respondents For Petitioner : Mr. Shikhar Bakhtiyar, Advocate. For Respondents No.1 to 4/ State : Mr. Rahul Tamaskar, Government Advocate. For Respondent No.6 : Mr. Anshit Singh Hora, Advocate on behalf of Mr. Ravindra Sharma, Advocate. AND WPS No. 3781 of 2018 Ajmal Javed, S/o Shri Abdul Wahab, Aged about 36 years, Selected Candidate in Waiting List at Sl.No. 2, R/o Jhanda Chowk, Sanjay Nagar, Raipur, Tahsil & District Raipur, Chhattisgarh ---Petitioner Versus 1. State of Chhattisgarh, Through its Secretary, General Administration Department, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur, Chhattisgarh 2. The Secretary, Public Works Department, State of CG, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur, Chhattisgarh 3. The Engineer-in-Chief, Public Works Department, Sirpur Bhawan, Raipur, Tahsil and District Raipur, Chhattisgarh 4. The Executive Engineer, Public Works Department, Electrical and Mechanical Division, Sirpur Bhawan, Raipur, Tahsil and District Raipur, Chhattisgarh 5. Vibhash Chandra Pandey, S/o Shri Sanat Kumar Pandey, (Selected Candidate in Waiting List at Sl.No.1), C/o Subodh Kumar Tiwari, House No.25/546, Sita Mandir Road, Kankalipara, Raipur, District Raipur, Chhattisgarh --- Respondents {W.P.(S)Nos.7113/2016 & 3781/2018} For Petitioner : Mr. Raj Kumar Pali, Advocate. For Respondents No.1 to 4/State : Mr. Rahul Tamaskar, Government Advocate. Single Bench: - Hon’ble Shri Justice Sanjay K. Agrawal Order on Board 07/03/2025 1. Since common question of law and fact is involved in both the writ petitions, they have been clubbed together, heard together and are being decided by this common order. 2. On 2-7-2013, the Chief Engineer, Public Works Department, Raipur issued advertisement for filling up of 36 posts of Data Entry Operator and thereafter, upon recruitment process having been concluded, merit list was published on 26-8-2014 in which petitioner Ajmal Javed was placed at serial No.23 (Waiting List No.2) and petitioner Jitendra Kumar Baweja was placed at serial No.30 (Waiting List No.5). However, the Chief Engineer passed order on 28-8-2014 appointing 31 candidates on the post of Data Entry Operator leaving 5 posts vacant and the same authority on 12-3-2015, revoked the appointment order dated 28-8-2014 leading to filing of batch of writ petitions which have been dismissed on 31-8-2015 and ultimately, the Division Bench allowed the writ appeals on 18-2-2016 and 31 candidates were directed to be appointed without back-wages. However, it is the case of the petitioners herein that out of 31 candidates, nine candidates did not join the post. Thereafter, Jitendra {W.P.(S)Nos.7113/2016 & 3781/2018} Kumar Baweja has filed the present writ petition (WPS No.7113/2016) on 20-12-2016 and Ajmal Javed has filed the present writ petition (WPS No.3781/2018) on 1-5-2018 seeking appointment on the vacant posts since the posts are vacant. 3. The State/respondents No.1 to 4 have filed return stating inter alia that the petitioners herein cannot be appointed as the entire process of recruitment has completed as back as on 26-8-2014 and pursuant to order dated 18-2-2016, selected candidates have been appointed. 4. Mr. Shikhar Bakhtiyar, learned counsel appearing for petitioner Jitendra Kumar Baweja in WPS No.7113/2016, would submit that since the posts are vacant, appropriate order / direction be issued directing the appointment of the petitioner herein on the said post, as nine selected candidates have not joined and till today, those posts are lying vacant. 5. In similar line, Mr. Raj Kumar Pali, learned counsel appearing for petitioner Ajmal Javed in WPS No.3781/2018, would submit that the present petitioner be appointed on the post of Data Entry Operator since the posts are still lying. 6. Mr. Rahul Tamaskar, learned Government Advocate appearing for the State/respondents No.1 to 4, would submit that after the recruitment process, merit list has been published on 26-8-2014 in which the petitioners’ position is at Serial No.23 (Ajmal Javed – Waiting List No.2) & Serial No.30 (Jitendra Kumar Baweja – Waiting List No.5) {W.P.(S)Nos.7113/2016 & 3781/2018} and the writ petitions have been filed on 20-12-2016 & 1-5-2018, as such, the writ petitions cannot be entertained. 7. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record meticulously and carefully as well. 8. Though 36 posts were advertised, but out of 36, 24 posts were for unreserved candidates and rest were for reserved candidates. However, 31 candidates were appointed on 28-8-2014 which was revoked on 12-3-2015 and ultimately, their writ appeal was allowed by this Court on 18-2-2016 pursuant to which most of the candidates have joined on 6-4-2016. However, it is the case of the petitioners that since the posts are lying vacant and some candidates have not joined, therefore, an appropriate writ be issued for appointing them on the said posts. 9. The subject recruitment is governed by the Chhattisgarh Public Works Department (Non-Gazetted) Service Recruitment Rules, 2007 (for short, ‘the Rules of 2007’). Rule 12 of the said Rules, which deals with List of Candidates recommended by the Selection Committee, provides as under: - “12. List of Candidates Recommended by the Selection Committee : - (1) The Selection Committee shall forward to the Appointing Authority a list arranged in order to merit of the candidates who have qualified by such standard as the Selection Committee may determine and the candidates {W.P.(S)Nos.7113/2016 & 3781/2018} belonging to the Scheduled Caste, Scheduled Tribe and Other Backward Classes who though not qualified by that standard, but are declared by the Selection Committee to be suitable for appointment to the service with due regard to the maintenance of efficiency of administration. The list shall also be published for general information. (2) Subject to the provisions of these rules and of the Chhattisgarh Civil Service (General Conditions and Service) Rules, 1961, candidate shall be considered for appointment to the available vacancies in the order in which their names appear in the list. (3) The inclusion of the candidate’s name in the list confers no right to appointment unless the Appointing Authority is satisfied, after such enquiry as may be considered necessary, that the candidate is suitable in all respects for appointment to the Service.” The said Rules, specifically, Rule 12 does not provide for waiting list. 10. The Supreme Court in the matter of State of Karnataka and others v. Bharathi S.1 has clearly stated that filling up of posts from the waiting list can arise only on the basis of mandatory rule and in absence of such provision, it is left to the wisdom of the State, and held as under: - “13. The position that emerges from the above decisions is 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 wisdom of the State. We will however add that State cannot act arbitrarily and its action will be subject to judicial review.” 11. Rule 12 of the Rules of 2007 does not provide either for preparation of waiting list nor for filling of vacancy from waiting list, as there is no provision for waiting list in the said Rules. In that view of the 1 2023 SCC OnLine SC 665 {W.P.(S)Nos.7113/2016 & 3781/2018} matter, the first argument of learned counsel for the petitioners is hereby rejected. 12. The next submission on behalf of the petitioners is that since the posts have fallen vacant on account of non-joining of some candidates, the present petitioners be granted appointment on those vacant posts. The recruitment process had already been initiated and it has come to an end and select list was also prepared and published way back on 26- 8-2014 vide Annexure P-2 and the present writ petitions have been filed on 20-12-2016 & 1-5-2018 with a delay of 2-4 years, and at this stage, it would be unfair towards the candidates to direct appointment merely on the ground that some candidates have not joined, especially when there is no such provision in the Recruitment Rules. 13. 13. In that view of the matter, I do not find any merit in the writ petitions and therefore both the writ petitions are hereby dismissed leaving the parties to bear their own cost(s). Sd/- (Sanjay K. Agrawal) JUDGE Soma