1 2025:CGHC:45137 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 4647 of 2021  Mantosh Kumar Sinha S/o Late Shri Ramnarayan Prasad Sinha Aged About 41 Years R/o Sanjay Nagar, Talwapara, Tehsil - Baikunthpur, Police Station Baikunthpur, District Koriya, Chhattisgarh., District : Koriya (Baikunthpur), Chhattisgarh ... Petitioner(s) versus 1. State Of Chhattisgarh Through The Secretary, Higher Education Department, Mahanadi Bhawan, Nawa Raipur, Atal Nagar, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 2. Chhattisgarh Public Service Commission Through The Secretary, Shankar Nagar, Bhagat Singh Chowk, Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 3. Controller Of Examination Chhattisgarh Public Service Commission, Shankar Nagar, Bhagat Singh Chowk, Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 4. Prachi Tiwari Through The Public Service Commission, Shankar Nagar, Bhagat Singh Chowk, Raipur, District Raipur, Chhattisarh., District : Raipur, Chhattisgarh ... Respondent(s) For Petitioner : Mr. Prateek Sharma, Advocate For State : Ms. Neelima Singh Thakur, P.L. For Respondents No. 2&3 : Mr. Anand Mohan Tiwari, Advocate For Respondent No. 4 : None Hon’ble Shri Justice Rakesh Mohan Pandey Order On Board 03-09-2025 Digitally signed by AJINKYA PANSARE Date: 2025.09.08 14:21:43 +0530 2 1) By way of this petition, petitioner has sought following reliefs:- 10.1 That, this Hon'ble Court may kindly be pleased to call for entire records pertaining to the case of petitioner, in the interest of justice 10.2 That, this Hon'ble Court may kindly be pleased to set aside impugned list dated 14.07.2021 (ΑΝΝEXURE P/1) to the extent of waiting list of Botany subject placing the petitioner at serial no. 11 and also be pleased to set aside the final selection list of Assistant Professor Botany subject (ANNEXURE P/2) to the extent of placing of petitioner at serial no. 72, by awarding only 185.9707 Marks to the petitioner, in the interest of justice. 10.3 That, this Hon'ble Court may kindly be pleased to direct the respondent PSC to issue fresh waiting list and final selection list of Assistant Professor Botany subject placing the petitioner in his proper legal entitled place with corrected enhanced marks at serial no. 3 in waiting list and serial no. 58 in final selection list both, in the interest of justice. 10.4 That, any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may be given. 2) Facts of the present case are that an advertisement was issued by the respondent No. 2 on 23.01.2019 for appointment to the posts of Assistant Professors for various streams. The petitioner participated in the written examination conducted on 05- 06.11.2020 and later on, she was called for interview on 07.07.2021. Select List and waiting list were published on 3 14.07.2021 and petitioner found place at S. No. 13 in the waiting list of open category. 3) Petitioner applied for an answer-sheet under the RTI Act, 2005 which was supplied to him on 11.08.2021. Petitioner has pleaded that his answer sheet was not evaluated in accordance with the model answer key prepared by the examination conducting body. 4) Learned counsel for the petitioner submits that answer-sheet of petitioner was not evaluated in accordance with the terms and conditions of the advertisement. He further submits that if petitioner’s answer sheet is re-evaluated, his position would be at S. No. 3 in Waiting List, therefore a direction may be issued to respondent No. 2 to re-evaluate the answer-sheet. 5) On the other hand, learned Advocates appearing on behalf of respondents oppose. They submit that the advertisement was issued on 23.01.2019 and the selection process was completed in the year 2021. They further submit that appointment orders have already been issued to the selected candidates and they have joined their service, but the petitioner has not impleaded them as party-respondents. They contend that even if petitioner were placed at S. No. 3 in the Waiting List, he would not get an appointment as the validity of Waiting List was for one year from date of publication of list, has already expired. They further contend that this petition deserves to be dismissed. 6) Heard learned counsel for the parties and perused the documents placed on record. 4 7) Admittedly, petitioner participated in the recruitment process for appointment to the post of Assistant Professor, and the Select List was published on 14.07.2021. The petitioner applied for answer sheet and pleaded that the answer sheet of the petitioner was not evaluated according to the model answer key issued by the examination conducting body, and if answer-sheet is re-evaluated properly, his position in the waiting list would improve and he would be placed at S. No. 3. 8. For the sake of argument, if the petitioner is placed at S. No. 3 in the waiting list, it would not confer any right in his favor, as the validity of waiting list was one year from the date of publication of the select list, which expired on 14.07.2022. Also, it is a well- settled principle of law that the waiting list is not a source of appointment; it serves only if selected candidates do not join the services. 9) Hon’ble Supreme Court in the matter of Gujarat State Dy. Executive Engineers’ Association Versus State of Gujarat & Ors.1 while dealing with the similar issue held as under :- 10. How a waiting list is to operate in the State is clear from a circular issued by the State Government on 27th December, 1983. The relevant portion of the Circular is extracted below:- “According to the instructions issued by the department often & often, waiting list prepared by the Gujarat Public Service Commission over and above the number of posts requisitioned shall remain in force upto 2 1. 1994 Supp (2) SCC 591 5 years or under circumstances upto the declaration of the result of next examination. The basic purpose of the preparation of waiting list is when sufficient candidates are not available from the merit list prepared for requisition of particular year, short fall can be met with from waiting list or for making recruitment Curing emergent condition, waiting list cannot be considered as merit list for that year or of next year, similarly waiting list cannot be used as a substitute to the requisition of next year. Further as the requisition statement for the particular year is sent for the post allocable to direct recruitment for that year as per provision in relevant rules, naturally the requirement of subsequent year cannot be incorporated. Considering on the above facts it is not fair to stop the regular procedure of recruitment or not to give new advertisement for the reason that merit list or waiting list prepared as part of merit list of previous year is in force.” Although the Circular was issued in 1983 but it only attempted to clarify what was implied purpose of a waiting list. Even without it, the operation of a waiting list should be confined to the vacancies notified for that examination and not for any vacancy arising in future unless a policy decision is taken by the Government to that effect. Appointment in future vacancies from waiting list prepared by the Commission should be exception rather than the rule. It has many ramifications. In any case, the High Court should not have assumed upon itself the role of appointing authority unless it found that the Government was acting arbitrarily. No rule has been shown that selection of direct recruits was to take place every year. In absence of such rule, the proviso could not apply. However, its validity was not challenged either in the High Court or in this Court. It has, therefore, to be construed so as not to defeat the objective of its enactment. For its working reasonably it has to be understood that 6 once recruitment by direct selection has been made in any year then the quota of direct recruits till then should be deemed to have been exhausted and if any vacancy could not be filled for any reason then it should be deemed to have lapsed and could'not be carried forward. Read in this manner the quota of direct recruits till 1980 exhausted. But it could not affect quota of 1981-82 and 1982-83, therefore, no appointments on the quota of direct recruits for 1981-82 and 1982-83 could be made from the waiting list of 1980. The entire exercise undertaken by the High Court of finding out number of vacancies was thus an exercise in futility. Further, what the High Court has done is that it has not worked out the vacancies only till the examinations were held but it went further to hold that since the result of the next examination was declared in 1983 the vacancies for direct recruits arising between the date the result of 1980 examination was declared and before the result of 1982 was declared could be filled from the waiting list of 1980. In other words, the waiting list instead of being a list for filling the vacancy in exigencies arising out of non- joining of a candidate for the year for which the examination was held became a source of recruitment for the vacancies which were to arise between 1980 and 1983. And if the vacancies which arose in 1981-82 and 1982-83 are filled by this method then the examination of 1982 was held for which vacancy as normally the Government sends the requisition for the vacancies existing on the date of sending the requisition. We can appreciate the anxiety of the High Court that if examinations are not held regularly as has happened between 1983 to 1993 it may result in depriving fresh candidates from being selected and their post may be filled by promotees. But such concern could not result in nullifying entire procedure. The better course would have been to direct the Government to work out the vacancies and fill them by holding an examination, if necessary, in addition to the examination already held. But the procedure adopted by the High Court, 7 of giving such vacancies to candidates who were in the waiting list does not appear to be correct. There was no contingency nor/the State Government had taken any decision to fill the vacancies from the waiting list as it was not possible for it to hold the examination nor any emergent situation had arisen except the claim of some of the candidates from the waiting list that they should be given appointment for vacancies which arose between 1980 and 1983 and between 1983 and 1993. Such claim of the appellants who had appeared in a particular examination and were placed in the waiting list could not be sustained. In fact, the action of the State Government in not sending the requisition every year or at most every second year to the Commission for holding an examination for vacancies which had arisen or were likely to arise was liable to be commented upon and the State Government should have been directed to take care in future that the examinations are held regularly. But in no case the vacancies arising in future should have been offered to the candidates in the waiting list of the earlier year. The direction of the High Court, therefore, to appoint the candidates from the waiting list in the vacancies which, according to its calculation, arose between the years 1980 to 1983 and between 1983 to 1993 cannot be upheld. 11. The entire appointment of direct recruits, therefore, from the waiting list was not proper. But these persons have been appointed and are working now at least for five years. It would, therefore, be unjust and harsh to quash their selection at this stage. Therefore, while refraining from quashing the appointment made in pursuance of the direction issued by the High Court, we are of the opinion that the waiting list for one year cannot furnish source of recruitment for future years, except in very exceptional cases. It is, however, necessary to add that non-holding of examination at the instance of the Government could not result in reducing the quota of direct recruits to be worked 8 out on the principle for determination of such vacancies. Therefore, if vacancies had collected between 1983 and 1993 due to interim orders passed by the courts, and they have not been taken into account when the examination for 1993 was held then it would be expedient to direct the Government to work out the same immediately and send the requisition to the Commission for holding selection for if the next examination is going to be held within one year from today. We may clarify that it is nobody's case that the quota rule has broken. Therefore the direction is being issued to protect the quota of direct recruits during 1983 to 1993 in the peculiar facts of the present case. 10) Further, petitioner has not impleaded any selected/ appointed candidate as party-respondent, therefore no order can be passed against any selected candidate. It is well settled principle of law that without impleading the selected/ appointed candidates, no adverse order can be passed against them. The Hon’ble Supreme Court in the matter of Ranjan Kumar & Ors. Versus State of Bihar & Ors2. while dealing with similar issue held as under :- 7. In Rashmi Mishra v. M.P. Public Service Commission, after referring to Prabodh Verma and Indu Shekhar Singh, the Court took note of the fact that when no steps had been taken in terms of Order 1 Rule 8 of the Code of Civil Procedure or the principles analogous thereto all the seventeen selected candidates were necessary parties in the writ petition. It was further observed that the number of selected candidates was not many and there was no difficulty for the appellant to implead them as parties in the proceeding. Ultimately, the Court held that when all the selected candidates were not impleaded as parties to the writ petition, no relief could be granted to the appellant therein. 2. (2014) 16 SCC 187 9 8. In Tridip Kumar Dingal and others v. State of W.B., this Court approved the view expressed by the tribunal which had opined that for absence of selected and appointed candidates and without affording an opportunity of hearing to them, the selection could not be set aside. 9. In Public Service Commission, Uttaranchal v. Mamta Bisht this Court, while dealing with the concept of necessary parties and the effect of non- implementation of such a party in the matter when the selection process is assailed, observed thus: - “9.....in Udit Narain Singh Malpaharia v. Board of Revenue, wherein the Court has explained the distinction between necessary party, proper party and pro forma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called 'Code of Civil Procedure') provides that non- joinder of necessary party be fatal. Undoubtedly, provisions of Code of Civil Procedure are not applicable in writ jurisdiction by virtue of the provision of Section 141 Code of Civil Procedure but the principles enshrined therein are applicable. 10. In J.S. Yadav v. State of U.P., it has been held that : “31. No order can be passed behind the back of a person adversely affecting him and such an order, if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice. ” It was further held that: 10 “31….The litigant has to ensure that the necessary party is before the Court, be it a plaintiff or a defendant, otherwise the proceedings will have to fail. In service jurisprudence if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in representative capacity.” 13. In view of the aforesaid enunciation of law, we are disposed to think that in such a case when all the appointees were not impleaded, the writ petition was defective and hence, no relief could have been granted to the writ petitioners. 11) Taking into consideration the above-discussed facts and the law laid down by the Apex Court in the matters of Gujarat State Dy. Executive Engineers’ Association (supra) and Ranjan Kumar (supra), this petition deserves to be and is hereby dismissed. Sd/- (Rakesh Mohan Pandey) JUDGE A j i n k y a