2025:CGHC:22571 AFR Reserved On : 04.03 .2025 Pronounced On : 09.06. 2025 HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 5295 of 2021 1 - Raj Kumar Singh S/o Shri Bhushan Lal Aged About 41 Years R/o Near Sweta Atta Chakki, Moulipara Telibandha District Raipur Chhattisgarh 492006 ... Petitioner(s) versus 1 - State Of Chhattisgarh Through The Secretary, Department Of Public Relations, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nawa Raipur District Raipur Chhattisgarh 492002 2 - The Director Directorate Of Public Relations, Indrawati Bhawan, Atal Nagar, Nawa Raipur District Raipur Chhattisgarh 3 - The Secretary Finance Department, Mantralaya, Mahanadi Bhawan, Atal Nagar, Nawa Raipur District Raipur Chhattisgarh 492002 … Respondents ________________________________________________________ For Petitioner : Mr. Tanmay Thomas, Advocate For State : Mr. Tarkeshwar Nande, Panel Lawyer ________________________________________________________ Hon'ble Shri Narendra Kumar Vyas, J. CAV ORDER 1. The petitioner has filed this writ petition assailing order dated 06.10.2023 passed by respondent No. 2 (Annexure P/9) by which the claim of the petitioner for appointment to the post of Information Assistant Grade-II has been rejected. Page 2 of 12 2. The brief facts as projected by the petitioner are that: (a) The Directorate of Public Relations (respondent No. 2) published an advertisement dated 29.09.2018 (Annexure P/1) for appointment on the post of Information Assistant Grade-I for 04 posts to fill up backlog vacancies of Scheduled Castes and Scheduled Tribes. This advertisement further consists of appointment on the post of Information Assistant Grade-I and Grade-II for actual vacancies. Accordingly, 16 vacancies were advertised which consists 7 posts for Unreserved, 5 for Scheduled Caste, 2 for Scheduled Tribes and 2 for Other Backward Class. In the same advertisement 8 vacancy of Information Assistant Grade-II was advertised which consists of 3 posts of Unreserved, 3 posts for Scheduled Caste, 1 post for Scheduled Tribes and 1 post for OBC, thus, total 28 posts were advertised out of which 10 posts were for Unreserved candidates, 9 posts for Scheduled Castes candidates, 6 posts for Scheduled Tribes candidates and 3 posts were reserved for OBC candidates. As per the advertisement the last date of submission of form was 28.10.2018 and the examination was to be conducted on 16.12.2018 in the examination center mentioned in the advertisement. (b) A common test was conducted by Professional Examination Board, accordingly, a merit list for 20 vacant posts of Information Assistant Grade-I was issued for verification of documents on 29.07.2019 and after verification of the records and marks obtained in written examination, merit list as well as waiting list were issued for 20 posts and 8 backlog posts. This 20 posts consists of Unreserved 7 posts (2 for woman), OBC 2 posts, Scheduled Castes 5 posts (out of which 3 posts were backlog post) and Scheduled Tribes 6 posts (out of which 1 is for woman and 1 for backlog post). The merit list of Assistant Grade-II for 8 posts was also issued which consists of 3 posts for Unreserved (out of which 1 is for woman), Scheduled Castes 3 posts (out of which 1 is for woman), Scheduled Tribes 1 post and for OBC 1 post. The waiting list of 6 candidates was also published in which one candidate belongs to Unreserved, two candidate belongs to OBC (1 woman and 1 man). The petitioner who belongs to Scheduled Caste category was at serial No. 4, serial No. 5 candidate belongs to Scheduled Tribe (female) and serial No. 6 candidate belongs to Scheduled Tribe male. Thereafter, the verification of the documents was conducted. (c) The petitioner being wait list candidate and the selected candidates have not been joined, therefore, he has moved a representation for considering his case for appointment on 04.03.2020 which was not considered by the respondents therefore, he has filed WP(S) No. 3197/2020 and the this Court directed to decide the representation of the petitioner within 45 days. The respondents vide order dated 06.10.2023 (Annexure P/9) has rejected the claim of the petitioner for appointment on the post of Information Assistant Grade-I on the count that no vacant post is available to fill up from wait list candidate, accordingly, his claim for appointment on the post of Information Assistant Grade-I has been declined. So far as Information Assistant Grade-II is concerned, reason has been assigned that due to COVID-19 Pandemic period of waiting list has already been extended for one year and after that extension of the period is not permissible under the rules and the validity period was already expired on 02.07.2021. As such, appointment order on the post of Information Assistant Grade-II cannot be issued to the petitioner. Being aggrieved with this order the petitioner has preferred this petition. 3. The State has filed its return mainly contending that on 29.12.2020 they have sought permission for filling up the vacant posts of Information Assistant Grade-II from the waiting list which has been granted on 22.02.2021 (Annexure R/1). Thereafter, the Finance Department has also granted approval for filling up 4 posts of Information Assistant Grade-I from the waiting list candidates and for filling up the post of wait list candidates Information Assistant Grade-II, they have sent proposal which was granted on 21.06.2021, but the requirement could not be completed during the validity of the waiting list which was till 02.07.2021 and it has lost efficacy in absence of any extension, as such, appointment order of the petitioner could not be issued. On this factual position prayed for dismissal of the writ petition. 4. The petitioner has filed rejoinder denying the said contentions of the respondents and would submit that the waiting list has not been expired as one of the post of Information Assistant Grade-II for which recruitment process was conducted was actually never filled up. This Court vide its order dated 11.03.2024 has directed the State to file an affidavit when the post of Scheduled Castes and Scheduled Tribes candidates or other candidates have been filled up by the select list of candidates. The State has filed their affidavit stating that on 08.11.2019 the post of Information Assistant Grade-II in all categories have been filled up and thereafter, due to vacant post of Information Assistant Grade-I, the appointment order has been issued on 30.06.2021 of 05 candidates. 5. The learned counsel for the petitioner would submit that due to delay tactics adopted by the respondent in obtaining approval the wait list has been lapsed for which the petitioner cannot be held responsible. He would further submit that as per the affidavit filed by the respondent himself in pursuance of direction given by this Court clearly establishes that initially appointment order was issued to the candidates on 13.11.2019 and the fact that selected candidates have not joined still the respondents have not taken any steps to fill up the posts from the wait list candidates. Thereafter, they have sought permission to fill up the 8 posts of Information Assistant Grade-I and 3 posts of Information Assistant Grade-II which was granted on 22.01.2021. Thereafter, again permission for fill up the 4 posts of Information Assistant Grade-II from the wait list was sought which was granted on 21.06.2021 and the respondent could not fill up the said by 02.07.2021 without any reason and thereafter, they have denied the claim of the petitioner on the count that wait list has expired which is nothing but suffers from illegality and arbitrariness, as such, impugned order rejecting the representation of the petitioner dated 06.10.2023 deserves to be quashed and the respondent be kindly directed to issue appointment order in favour of the petitioner with all consequential benefits. 6. He would further submit that from the affidavit filed by the respondent itself, it is quite vivid that the respondents have filled up the 8 posts of Information Assistant Grade-I and 3 posts of Information Assistant Grade-II from the wait list candidates on 30.06.2021 (Annexure P/8) though the case of the petitioner can be considered for next one year upto 29.06.2022 which has not been considered and after filing of the contempt petition before this Court the respondents have passed the impugned order dated 06.10.2023 which clearly demonstrate the arbitrarily action on the part of the respondents and no justifiable reason has been assigned by the respondents except completion of validity period of waiting list, thus, a writ of mandamus deserves to be issued to the respondent to issue an appointment order in his favour. To substantiate he has referred the judgment of Hon’ble Supreme Court in case of State of Jammu and Kashmir & Others vs. Satpal reported in 2013 (11) SCC 737 and judgment of Hon’ble Division Bench of this Court in Writ Appeal No. 490/2015 in case of Uttam Kumar Bareth vs. State of Chhattisgarh & Others decided on 14.07.2016. 7. The learned counsel for the respondent would submit that since extended period of validity period has already expired, therefore, they cannot issue appointment order in favour of the petitioner and would submit that the impugned order dated 06.10.2023 is legal, justified and would pray for dismissal of the petition. 8. I have heard learned counsel for the parties and perused the record with utmost satisfaction. From the submissions made by the parties the points emerged for determination of this Court are :- “In view of the facts and circumstances of the case whether the respondents were justified in declining the appointment order to the petitioner who is wait list candidate on the count of completion of extended validity period of one year of waiting list and if not what direction can be issued to the respondents?” 9. So far as the controversy involved in the present case is that about claim of a wait list candidate in selection process. The record of the case clearly demonstrate that the petitioner was wait list candidate at serial No. 4 of Information Assistant Grade-II post. The respondent issued appointment order of wait list candidates on 30.06.2021 in pursuance of first approval granted on 29.01.2021 as per Annexure D/5 and thereafter again for 4 posts approval was sought which was granted on 21.06.2021, but the appointment order could not be issued to the petitioner upto 02.07.2021 without any rhyme and reason. The record of the case would reflect that service condition of the petitioners are governed by Chhattisgarh Public Relations Class-III (Ministerial and Non-Ministerial) Recruitment Rules, 2006. The Rules 11 provides direct recruitment by competitive examination selection. The Rules 12 provides recommendation of list of candidates by the Selection Committee to the appointing authority by arranging in order of merit of the candidates and Rule 12(3) provides that inclusion of candidate 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 Rule does not provide any fixed validity period of select list or wait list. 10. It is well settled position of law that though the waiting list/selected candidates have no indefeasible right to be appointed and when the waiting list candidate is not appointed despite vacancy and the advertised post is not filled up the requirement is that the appointing authority should be able to provide legally acceptable, justifiable reasons for non-appointment of the candidates in the waiting list. The inaction on the part of the respondents for filling up the vacant posts on account of non-joining of selected candidates without any justifiable reason is arbitrary and bad in law. The action on the part of the respondent become all the more arbitrary for the reason that the department sought approval which have been granted by the State as reflected from the note sheet filed by the petitioner received by him under the Right to Information Act showing their interest in filling up of the vacant posts that arose account of non-joining of the selected candidates from among the wait list. It is under such circumstances that a right stand created in favour of the petitioner. It is pertinent to mention here that all the correspondences here between the State and the respondent Department have been taken place during the validity of first extension of validity of waiting list. As such, not granting appointment to the petitioner by the respondent is contrary to the law laid down by the Hon’ble Supreme Court in case K. Jayamohan vs. State of Kerala & Another reported in 1997 (5) SCC 170 wherein the Hon’ble Supreme Court in paragraph 5 has held as under: “5. It is settled legal position that merely because a candidate is selected and kept in the waiting list, he does not acquire any absolute right for appointment. It is open to the Government to make the appointment or not. Even if there is any vacancy, it is not incumbent upon the Government to fill up the same. But the appointing authority must give reasonable explanation for non- appointment. Equally, the Public Service Commission/recruitment agency shall prepare waiting list only to the extent of anticipated vacancies. In view of the above settled legal position, on error is found in the judgment of the High Court warranting interference.” 11. It is well settled position of law that a waiting list would commence to operate when offer of appointment have been issued to those emerging on the top of the merit list. The case of the respondent is not that they have issued the offer of appointment to all the candidates and thereafter, they have not joined. In fact from (Annexure P/2) it is quite vivid that if any candidate does not appear for verification of the records then he will be treated as not interested in Government service and wait list candidate will be given appointment. From the record of the case, particularly order of this Court passed in WP(S) No. 3197/2020 (Annexure P/4), it is quite vivid that the respondent have issued letter dated 04.03.2020 to the selected candidates asking them to appear with a specific endorsement that by the time if they do not appear then the waiting list candidate would be given preference and accordingly 06 candidates have intimated for verification of records. The respondents have not produced any document that merit candidates including the 06 candidates whose names have been mentioned in the order passed by this Court have appeared for verification of records and have been offered appointment or later on they have refused to join. This clearly demonstrate that the wait list will start only when the respondents have offered the appointment order to the candidates after getting approval by the State Government. The record of the case further demonstrate that the respondents have issued appointment order to candidates on the post of Information Assistant Grade-I on 30.06.2021 after approval from the State Government, still the post of Information Assistant Grade-II was lying vacant and no appointment was offered to the candidates on the post of Information Assistant Grade-II, as such, it cannot be held that the validity period of wait list has expired on 02.07.2021. Therefore, the validity period of wait list will be upto 29.06.2022, as such, the respondents should have issued the appointment order to the petitioner. Thus, inaction of the respondents in not issuing the appointment order to the petitioner and rejection of representation for issuance of appointment on the count of expiration of validity period of one year is against the law laid down by the Hon’ble Supreme Court in case of State of Jammu and Kashmir vs. Satpal reported in 2013 (11) SCC 737 has held as under: “11. In view of the factual position noticed hereinabove, the reason indicated by the appellants in declining the claim of the respondent Sat Pal for appointment out of the waiting list is clearly unjustified. A waiting list would start to operate only after the posts for which the recruitment is conducted, have been completed. A waiting list would commence to operate, when offers of appointment have been issued to those emerging on the top of the merit list. The existence of a waiting list, allows room to the appointing authority to fill up vacancies which arise during the subsistence of the waiting list. A waiting list commences to operate, after the vacancies for which the recruitment process has been conducted have been filled up. In the instant controversy the aforesaid situation for operating the waiting list had not arisen, because one of the posts of Junior Engineer (Civil) Grade-II for which the recruitment process was conducted was actually never filled up. For the reason that Trilok Nath had not assumed charge, one of the posts for which the process of recruitment was conducted, had remained vacant. That apart, even if it is assumed for arguments sake, that all the posts for which the process of selection was conducted were duly filled up, it cannot be disputed that Trilok Nath who had participated in the same selection process as the respondent herein, was offered appointment against the post of Junior Engineer (Civil) Grade-II on 22.4.2008. The aforesaid offer was made, consequent upon his selection in the said process of recruitment. The validity of the waiting list, in the facts of this case, has to be determined with reference to 22.4.2008, because the vacancy was offered to Trilok Nath on 22.4.2008. It is the said vacancy, for which the respondent had approached the High Court. As against the aforesaid, it is the acknowledged position recorded by the appellants in the impugned order dated 23.8.2011 (extracted above), that the waiting list was valid till May, 2008. If Trilok Nath was found eligible for appointment against the vacancy in question out of the same waiting list, the respondent herein would be equally eligible for appointment against the said vacancy. This would be the unquestionable legal position, in so far as the present controversy is concerned. 12. The date of filing of the representation by the parties concerned and/or the date on which the competent authority chooses to fill up the vacancy in question, is of no consequence whatsoever. The only relevant date is the date of arising of the vacancy. It would be a different legal proposition, if the appointing authority decides not to fill up an available vacancy, despite the availability of candidates on the waiting list. The offer made to Trilok Nath on 22.4.2008 by itself, leads to the inference that the vacancy under reference arose within the period of one year, i.e., during the period of validity of the waiting list postulated by the rules. The offer of the vacancy to Trilok Nath, negates the proposition posed above, i.e., the desire of the employer not to fill up the vacancy. Herein, the appellants wished to fill up the vacancy under reference. Moreover, this is not a case where the respondent was seeking appointment against a vacancy, over and above the posts for which the process of selection/ recruitment was conducted. Based on the aforesaid inference, we have no hesitation in concluding that the appellants ought to have appointed the respondent Sat Pal, against the vacancy which was offered to Trilok Nath.” 12. Again the Constitutional Bench of Hon’ble Supreme Court has considered the right of selected candidate for appointment in case of Tej Prakash Pathak & Others vs. Rajasthan High Court & Others reported in 2025 (2) SCC 1 has held in paragraphs 63 and 64 as under: “63. In Section (C) above, we have already noticed the Constitution Bench decision of this Court in Shankarsan Das (supra) where it was held: (SCC p. 51, para 7) “7. … Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the license of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.” 64. Thus, in light of the decision in Shankarsan Das (supra), a candidate placed in the select list gets no indefeasible right to be appointed even if vacancies are available. Similar was the view taken by this Court in Subash Chander Marwaha (supra) where against 15 vacancies only top 7 from the select list were appointed. But there is a caveat. The State or its instrumentality cannot arbitrarily deny appointment to a selected candidate. Therefore, when a challenge is laid to State’s action in respect of denying appointment to a selected candidate, the burden is on the State to justify its decision for not making appointment from the Select List.” 13. From the above discussion and considering the law on the subject, it is quite vivid that though the approval was granted for filling up the post of the wait list candidates on 21.06.2021 still the respondents have not fill up the post of Information Assistant Grade-II on the count that the waiting list is expired which is nothing but suffers from perversity, illegality and arbitrariness, therefore, the impugned order dated 06.10.2023 (Annexure P/9) deserves to be set aside and accordingly, it is set aside and the respondent is directed to issue appointment order to the petitioner within 2 months from the date of receipt of copy of order without back wages, but he will get notional seniority and fixation of pay which will be counted for the purpose of all other service benefits except back wages from the date waiting list candidates on the post of Information Assistant Grade-II have been appointed on 30.06.2021 by the respondents. 14. 14. Consequently, the impugned order dated 06.10.2023 (Annexure P/9) is quashed and the respondent is directed to issue appointment order to the petitioner as directed above within 2 months from the date of receipt of copy of order. The writ petition is allowed. 15. No order as to cost. Sd/- (Narendra Kumar Vyas) Judge Deshmukh KISHORE KUMAR DESHMUKH Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.06.09 17:22:31 +0530