1 2025:CGHC:6770 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 4498 of 2018 1 - Shirish Tiwari S/o Shri Anand Prasad Tiwari, Aged About 36 Years R/o Near Ram Talkies, Ward No. 19, Ganjpara, Civil And Revenue District Mahasamund Chhattisgarh., District : Mahasamund, Chhattisgarh ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Secretary, Education Department, Mahanadi Bhavan, Mantralaya, Naya Raipur, P.S. Rakhi, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 2 - Director, Department Of Panchayat 36 C-Iii, Block - Ii, Second Floor, Indravati Bhavan, Mantralaya, Naya Raipur, P.S. Rakhi, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 3 - Chief Executive Officer, Office At Zila Panchayat Narayanpur, District Narayanpur Chhattisgarh., District : Narayanpur, Chhattisgarh ... Respondent(s) For Petitioner : Mr. Mayank Chandrakar, Advocate For State/respondents No.1 & 2 : Mr. Vedant Shadangi, Panel Lawyer For respondent No.3 Mr. Anand Dadariya, Advocate Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board 06.02.2025 1. The petitioner has filed this petition seeking the following relief(s):- “10.1 That, this Hon'ble Court may kindly be pleased to call for the entire records, of the case. 10.2 That, this Hon'ble Court may kindly be pleased to quosh the order dated 21.05.2018 and issue appropriate directions, orders and/or writs and direct the respondent authorities to immediately appoint the petitioner in the post of lecturer (panchayat) in District narayanpur after issuing appointment order. Digitally signed by REKHA SINGH 2 10.3 That, this Hon'ble Court may kindly be pleased to issue appropriate directions, orders and/ or writs and direct the respondent authorities to decide the representation made by the petitioner within a stipulated time. 10.4 Any other relief (s) which this Hon'ble Court may deem fit or proper in the facts and circumstances of the case.” 2. The facts of the present case are that respondent No.3 issued an advertisement for direct recruitment for the post of Lecturer (Panchayat) in the Commerce stream in District Narayanpur (C.G.). There were a total of 4 posts for the Lecturer (Panchayat). Out of 4 posts, one post was kept for the unreserved category. Another advertisement was issued by respondent No.3 whereby applications were invited from the departmental candidates for promotion to the 11 posts of Lecturers. 3. The petitioner as well as other eligible candidates participated in the recruitment process of the Lecturer (Panchayat) pursuant to the advertisement dated 24.07.2017 against one unreserved post. The select list was published. The petitioner was at serial No.1 in the wait list whereas the candidate namely, Kaynath Parveen was selected. 4. In the departmental examination, out of 11 posts, only one teacher namely, Lata Manikpuri was appointed to the post of Lecturer (Panchayat) under the unreserved category. 5. Mr. Chandrakar, the learned counsel appearing for the petitioner would submit that according to sub-clause (x) of clause (f) of Rule 7 of the Chhattisgarh Teacher (Panchayat) Cadre (Recruitment and Conditions of Service) Rules, 2012 (for short ‘the Rules of 2012’) and Schedule-III appended to this Rule, respondent No.3 ought to have considered the candidature of the petitioner for appointment to the post of Lecturer (Panchayat) against the vacant post of departmental examination and in 3 this Rule, it is stated that the vacant post of departmental examination can be filled from the waitlist. He would further submit that out of the total vacancy, 50% of posts were to be filled through direct recruitment and 50% by promotion. He would contend that as the post remained vacant, and the post could not be filled, the candidature of the petitioner should have been considered by respondent No. 3 for appointment to the post of Lecturer (Panchayat). 6. On the other hand, Mr. Dadariya, appearing for respondent No. 3 would oppose the submissions made by Mr. Chandrakar. He would vehemently argue that both advertisements were separate and distinct. He would further argue that the advertisement dated 24.07.2017 was published for direct recruitment. He would contend that there were 4 four posts of Lecturer (Panchayat) in the District Narayanpur and only one post was kept for the unreserved category. He would further contend that the petitioner was placed at serial No.1 in the wait list of the unreserved category. He would further submit that a separate advertisement was issued for the departmental candidates where there were 11 posts of the Lecturer (Panchayat). He would also submit that the criteria for the appointment of the departmental candidates were entirely different from the criteria for direct recruitment. He would state that out of 11 vacancies, only one candidate was found fit for the post of Lecturer (Panchayat). He would further state that the candidates from one recruitment process to another recruitment process cannot be mixed up. In support of his contentions, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Vivek Kaisth and another Vs. State of Himachal Pradesh and others, 2024 (2) SCC 269. 4 7. Mr. Shadangi, the learned Panel Lawyer appearing for the State would support the contentions made by Mr. Dadariya. 8. Heard learned counsel for the parties and perused the material/documents available on the record. 9. Admittedly, the petitioner participated in the advertisement for the direct recruitment for the post of Lecturer (Panchayat). One post of Lecturer (Panchayat) was kept for the unreserved category. The petitioner was placed at serial No.1 on the waitlist. The petitioner is claiming that his candidature may be considered against the departmental vacancy. 10. Clause (f) of Rule 7 of the Rules of 2012 reads as under:- (7) The following Screening Committee shall be constituted for the scrutiny of the application forms received in the prescribed proforma :- (f) Procedure of examination for selection. If the State Government issues any order/instruction for competitive examination (for selection) as mentioned in sub-rule (d) above then the procedure for such examination shall be as follows:- (i) Applications shall be submitted in the prescribed form. (ii) Prior to examination no scrutiny shall be done. It shall be the responsibility of the candidates before appearing in the examination to ascertain that they possess the prescribed qualification. (iii) Selection examination shall consist of objective questions of 100 marks. Four alternative answers to each question shall be given. (iv) Examination shall be of two hours duration. (v) The result of the written examination shall be published. Model answers shall also be published with result. (vi) Examination shall be conducted on the same date and time, as far as possible. Standard for conducting examination (Janpad Panchayat/Zila Panchayat/State) and time table shall be determined by the State Government. (vii) Examination fee may be taken from applicants. (viii) Examination may be conducted by any Authority/any other institution selected by the Appointing Authority with the approval of State Government, from time to time. (ix) Selection list shall be submitted to Appointing Authority for necessary action (for issue of appointment orders). If the appointments are not made within 15 days by the Appointing Authority then the action for appointment shall 5 be taken by the Chief Executive Officer of the concerned Zila Panchayat/Janpad Panchayat. (x) The entire selection list together with the waiting list shall be valid for one year after the declaration of the examination result and new posts sanctioned or posts lying vacant because of any reason during this period may be filled by this waiting list. (xi) The merit list of gradewise candidates shall be displayed on the notice board of Zila Panchayat or Janpad Panchayat by the Appointing Authority. (xii) The merit list shall be published separately gradewise, subjectwise and subject groupwise of the qualified candidates and other (exempted/relaxed) candidates. (xiii) The appointment shall be made from the select list on the basis of roster prescribed by the State Government under Chhattisgarh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 (No. 21 of 1994) and the roster maintained by Zila Panchayat and Janpad Panchayat, as the case may be.” 11.Schedule -III and Note appended to the Rule are as under:- Schedule III SI.No. Teacher (Panchayat) Cadre Percentage of the number of posts to be filled in By direct recruitment By Promotion (1) (2) (3) (4) 1. Lecturer (Panchayat) 50 percent 50 percent 2. Teacher (Panchayat) 50 percent 50 percent 3. Assistant Teacher (Panchayat) 100 percent ------------- Note:-(1) The posts filled up by direct recruitment and promotion of the Teacher (Panchayat) cadre in the School, as may be necessary, shall be valued and certified by the Deputy Director Education or Assistant Commissioner, Tribal Development, as the case may be. (2) As per rule if the candidate is not available for promotion then the posts of the promotion shall also be filled up by direct recruitment, however, if candidate attains the required qualification for promotion then they shall be given promotion upto 50 percent of sanctioned posts in related subject and special faculty. Super numerary posts shall be sanctioned for them and promoted from which post, after promotion that post shall 6 be vacant for adjustment to regular sanctioned post from super numerary posts. Super numerary posts shall be adjusted against the posts of promotion to be vacant in future.” 12. A bare reading of Schedule-III and a note appended to the Rule would make it clear that 50% of posts are to be filled through direct recruitment and the rest of 50% can be filled by promotion. In the absence of suitable candidates in the limited departmental examination, the posts can be filled through direct recruitment but it is nowhere stated that those posts have to be filled by the candidates who have participated in the process of direct recruitment. 13. In the matter of Vivek Kaisth (supra), the Hon’ble Supreme Court has held that appointments cannot be made over and above the vacancies which have been advertised. The issue with regard to the waitlist has been considered by the Hon’ble Supreme Court in para 34 and it is held that the names from the wait list cannot be considered in the absence of any recruitment process or advertisement as no advertisement was issued for those vacancies. It is also held that if the vacancies notified stand filled up, the process of selection comes to an end and the wait list cannot be used as a reservoir to fill up the vacancy which comes into existence after the issuance of notification. Paras 27, 29, 33, 34 & 35 are reproduced herein below:- “27. Appointments cannot be made over and above the vacancies which have been advertised, except in an emergency situation or for some unforeseen reasons, in public interest or when a policy decision is taken by the State Government in this regard, as held by this court in Gujarat State Dy. Executive Engineers’ Assn. v. State of Gujarat (1994) Supp 2 SCC 591. 29. The common thread that runs in all the above judgments is that appointments cannot be made over and above the vacancies which were advertised i.e., 7 clear and anticipated vacancies, even though the Public Service Commission may have prepared a longer merit list than it was required to do. 33. In Rakhi Ray & Ors. v. High Court of Delhi & Ors. (2010) 2 SCC 637, the practice of making appointments on future vacancies from the waiting list was held to be wrong. “In case the vacancies notified stand filled up, the process of selection comes to an end. Waiting list, etc. cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification/advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service any more” 34. We are referring to the position of law on “waiting list” because one of the arguments of the appellants (in connected appeals) before us is that, since in any case there was a direction in Malik Mazhar-2 for having a “waiting list”, therefore the names of those two appellants ought to have been considered as names from the “waiting list”. In our opinion, this cannot be done, as the question would still remain whether selection/appointment can be made on vacancies, which were never advertised, apart from the fact that this would in any case go against the very concept of a ‘waiting list’ that we have explained above. The vacancies on which the appointments have been made could not be anticipated Para 12 at the time of advertisement (February 1st, 2013), and hence these vacancies were not advertised. These two vacancies were in fact, created on 18.03.2013 i.e., after the notification of vacancies on 01.02.2013. These were the “future vacancies”, which earlier could fall under the “C” category given in Malik Mazhar but were deleted in Malik Mazhar-2. These vacancies technically could only be filled next year and should have been notified by January 15th, 2014 as per the directions in Malik Mazhar. The argument of the appellants (in connected appeals), particularly against the present appellants, that had there been a waiting list they could have been considered for appointment in that category for these vacancies, in our opinion, is a complete misunderstanding of the concept of a “waiting list”. 35. To sum up the position of law as it stands, once clear and anticipated vacancies have been advertised, appointments can only be made on these vacancies. Vacancies which could not be anticipated before the date of advertisement, or the vacancies which did not exist at the time of advertisement, are the vacancies for the future i.e., next selection process. Malik Mazhar mandates yearly 8 selection/appointment on the post of Civil Judge (Junior Division). There is a time line fixed, and ‘vacancies’ have to be declared on January 15th of each year. The process has to be completed by October of the same year. Once this is followed, as it ought to be, the object sought to be achieved (under the guidelines given in Malik Mazhar), of timely filling of judicial vacancies is achieved.” 14. In the present case, there were two separate advertisements. The petitioner submitted his application form against the advertisement issued for direct recruitment and he was not eligible to participate in the departmental examination as he was not a teacher. There was only one vacancy in the district Narayanpur for the unreserved category of Lecturer (Panchayat) and someone else was placed at Serial No.1 on the merit list and the name of the petitioner was at Serial No.1 on the wait list. The recruitment process came to an end immediately after the appointment of the selected candidate. The waitlist cannot be used as a reservoir as held by the Hon’ble Supreme Court to fill up the subsequent vacancies. If there were vacancies for direct recruitment certainly the case of the petitioner could have been considered by the respondent authorities but the petitioner cannot be accommodated against the post reserved for the departmental candidates. 15. Taking into consideration the facts discussed above and the law laid down by the Hon’ble Supreme Court in the matter of Vivek Kaisth (supra), in my opinion, no case is made out for interference. Consequently, the present petition fails and is hereby dismissed. No cost(s). Sd/- (Rakesh Mohan Pandey) JUDGE Rekha 9