1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 3764 of 2014 Sunil Kumar Borkar S/o Shri S.C. Borker Aged About 36 Years Data Entry Operator Tribal Research And Training Institute Raipur Post And Thana D.D. Nagar, Distt. Raipur C.G. , Chhattisgarh ... Petitioner versus 1 - State Of Chhattisgarh And Ors. S/o Through The Secretary Primitive Cast And Scheduled Caste Development Department, Mahanadi Bhawan New Raipur C.G. Chhattisgarh 2 - The Director, Scheduled Cast Researcher And Training Institute, Raipur C.G. , District : Raipur, Chhattisgarh 3 - Deputy Director Scheduled Cast Researcher And Training Institute, Raipur C.G. , District : Raipur, Chhattisgarh ... Respondent(s) For Petitioner : Mr. Amrito Das with Mr. Yashraj Verma, Advocates For Respondent(s) : Ms. M. Asha, P.L. Hon'ble Shri Justice Sachin Singh Rajput Order On Board 05.03.2025 1. The petitioner has filed this writ petition seeking for the following relief(s); 10.1 That, this Hon'ble court may kindly be pleased to quash Memo/letter 26.02.2014 (Annexure P-1) passed by the respondent no.3. 10.2 That, this Hon'ble court may kindly be pleased to direct the respondents concerned to issue an appointment order in favor of the petitioner for Museum Assistant, within a week. 10.3 Any other relief, which this Hon'ble Court may deem fit. 2. The case in a nutshell is that on 21.12.2012, the respondent no.2 issued an advertisement for the post of Museum Assistant. As per advertisement only one post was there. The number of candidates have applied for said post, two candidates were found fit for said post, 1. Namely Smt. Sangeeta Sahu. 2. Sunil Kumar Borker (Petitioner). For the said post of Museum Assistant the qualification was Degree/Diploma in Museum Science. After completing all HIFZURRAHMAN ANSARI Digitally signed by HIFZURRAHMAN ANSARI Date: 2025.04.23 17:48:37 +0530 2 the formalities, the respondent No.2 issued an appointment order in favor of the Smt. Sangeeta Sahu on 14.08.2013, in compliance of order of appointment, she joined as Museum Assistant on 22.08.2013, Smt. Sangeeta Sahu moved an application before respondent No.2 on 05.09.2013 regarding resignation of post of Museum Assistant. Due to non filling of Medical fit Certificate, her application was accepted by the respondent no.3 on 05.02.2014. After resignation of Smt. Sangeeta Sahu, only petitioner was fit for said post, therefore, the petitioner moved an application before respondents to issue an appointment order in his favor from waiting list. But, the respondent No.2 did not issued an appointment order in his favor and issued letter against the petitioner on 26.02.2014 whereby the respondent No.3 has declared non-eligible to the petitioner for the post of Museum Assistant and given the reason that without departmental permission, the petitioner moved application for said post, therefore, he is not eligible for post Museum Assistant. 3. Learned counsel for the petitioner submits that an advertisement was issued on 21.12.2012 Annexure P-4 by the respondent No.2 inviting applications for suitable candidates for appointment on the post of Museum Assistant. The petitioner made the application for appointment on such post and a select list Annexure P/13 was issued in which one Smt. Sangeeta Sahu was selected on the said post and she obtained 52.00 marks whereas the petitioner was placed at waiting list as he obtained 47.39 marks. He submits that though the selected candidates gave her joining, however, as she could not procure the requisite documents including medical documents, therefore, she abandoned her appointment and the post became vacant. In all fairness, the respondents/State should have considered the case of the petitioner being in the waiting list and issued the appointment order in his favour. He submits that a representation was made Annexure P-11 which was illegally turned down by giving a reason that since the petitioner is working as Date Entry Operator in the Government Department and as such No Objection Certificate has not been opted from his parent department, he is not eligible to appointed on such post. Therefore he submits that impugned communication Annexure P/1 may be quashed and respondents/State may be directed to appoint him on the said post “Museum Assistant”. He further goes on to submits that that though the Smt. Sangeeta Sahu has abandoned her claim but treating her application as a resignation an order was passed by the state authorities accepting her resignation. Apart from 3 this he submits that the select list was bad in law as proper assessment of the marks on merits have not been made by the respondent authorities. The petitioner was more meritorious than the selected candidates Smt. Sangeeta Sahu, therefore, this writ petition may be allowed in toto grating relief as prayed. 4. Opposing the submission, State counsel submits that the petitioner was placed in the waiting list whereas the selected candidate has joined the appointment in compliance of the select list. Therefore as soon as she joins the post, the currency of the select list comes to an end. Had it been a case that the selected candidate has not joined and the petitioner could have raised his claim for appointment. So far as the submission with regard to abandonment of the claim is made by Mr. Amrito Das, Ms. M. Asha submits that rightly or wrongly the selected candidate has joined the post and as she could not procure the relevant documents including medical documents, she made an application that she could not continue on the said post treating an application to be a resignation the respondents/State in his wisdom on 05.02.2014 Annexure P/10, accepted the resignation w.e.f. 05.09.2013. The petitioner has not challenge the acceptance of resignation made incorrect or illegal. Apart from this she submits that on assessment of the merits of the candidates in the select list is concerned, the select candidate though may not have at present continuing with the said post but if any condemnation with regard to the merits of this case made by this Court while deciding this writ petition, it would cause prejudice to her rights, therefore, the submissions cannot be accepted. 5. I have heard learned counsel for parties and perused the documents available on record. 6. Admittedly, the advertisement was issued on 21.12.2012 by the respondent No.2 and Smt. Sangeeta Sahu was selected and petitioner was placed in the waiting list. The first submission of the counsel for the petitioner is that the selected candidate though had joined but later on abandoned the claim on absence of requisite documents and/or medical documents, therefore, it cannot be said that the selected candidates gave her resignation. This submission cannot be accepted by this Court in light of the fact that admittedly that the selected candidate had not given her joining letter because of non-procurement of the documents, she is unable to join and in light of that an order is also 4 passed by the respondent No.2 dated 05.02.2014 Annexure P/10 accepting her resignation. Therefore, it is not a case of the petitioner that the acceptance of the resignation is bad in law. Therefore, this submission of Mr. Amrito das is liable to be rejected. 7. Now second submission was made with regard to assessment of the merits of the petitioner and the selected candidates. Mr. Amrito das tried to demonstrate before this Court that since the petitioner was not given proper marks looking to his merits and being a Government servant cannot be looked into at this stage because if any finding in this regard is given by this Court without hearing the selected candidates which may cause prejudice to the rights of the selected candidates. Therefore, the submission made by the Mr. Das is also not hold water and liable to be rejected. 8. Now the third submission is with regard to rejection of the representation on the ground that the petitioner has not given up the NOC from the parents serving department may be. But in the opinion of this Court as the select list has already been acted upon by joining of the selected candidates on the post and thereafter resigning from the said, the select list cannot be re-winded upon even if the reasons which have been assigned by the respondent State that she has not submitted the NOC may not help the petitioner in any manner. The Hon’ble Supreme Court in Sudesh Kumar Goyal Vs. State of Haryana and ors. reported in (2023) 10 SCC 54 has held as under: “19. This takes us to the second argument that the appellant could have been easily adjusted against the vacancy caused due to resignation of one of the selected candidates. The argument per se is bereft of merit inasmuch as all the vacancies notified stood filled up Initially. However, 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 Division Bench has rightly dealt with the above contention in the light of the precedent of the various decisions of this Court and we do not feel that any error has been committed in this context.” 9. Consequently, the writ petition is dismissed. No cost. Sd/- (Sachin Singh Rajput) Judge H.Ansari