Dr.Leena Kulthiya Vs. Principal Secretary the State of Madhya Pradesh - Court Judgment

SooperKanoon Citationsooperkanoon.com/1047604
CourtMadhya Pradesh High Court
Decided OnSep-02-2013
AppellantDr.Leena Kulthiya
RespondentPrincipal Secretary the State of Madhya Pradesh
Excerpt:
w.p.no.10023/2009 dr. leena kulthiya vs.  state of m.p. & ors.1 02.09.2013 shri r.k.samaiya, the learned counsel for the petitioner. shri s.m.lal, learned govt. advocate, for the respondent/state. this petition is pending since 2009. the return has been filed on behalf of the respondent nos.1 & 2. the learned counsel for the petitioner submits that he has not prepared the case on merits for the purpose of arguing on admission and he prays for time. looking to the fact that the petition of the year 2009, has been listed for hearing on admission, after filing of the return and that the petitioner has obtained an interim order, the prayer for time prayed by the learned counsel for the petitioner is rejected. heard on the question of admission. the petitioner has filed this petition alleging that the petitioner, whose name has been mentioned at sr.no.1 in the waiting list prepared by the authorities for making appointment on the post of assistant professor in the obc category, has been denied appointment. the petitioner has also challenged the advertisement dated 29.9.2008 whereby the respondent authorities immediately after publishing the result have issued a fresh w.p.no.10023/2009 dr. leena kulthiya vs.  state of m.p. & ors.2 advertisement for filing up three backlog posts of the obc category without considering the petitioner for appointment on these posts. t the learned counsel for the petitioner also submits and alleges that the respondent authorities have selected and appointed respondent nos.3 to 9 as assistant professor ignoring the merit of the petitioner who is having teaching experience of six years in government degree college. on the basis of the said allegations, the petitioner has prayed for calling the entire record of the selection process of obc candidates in the subject of political science and for quashing advertisement dated 29.9.2008 issued by the respondent authorities for filing up backlog posts. it is submitted that the petitioner being placed at sr.no.1 in the waiting list is entitled to appointment. the respondent public service commission has filed a return and has stated that the advertisement dated 19.6.2006 was issued on the basis of a requisition sent by the higher education department specifying the posts and qualifications therein. it has been stated that the petitioner applied pursuant thereto for appointment on the post of assistant professor, political science for which 7 posts of obc category have been advertised out of which 2 were w.p.no.10023/2009 dr. leena kulthiya vs.  state of m.p. & ors.3 to be filled up from women candidates. it is submitted that the petitioner secured 47 marks in the examination and was placed at sr.no.1 in the wait list while the last selected candidate in the obc category obtained 48 marks. the respondent no.2 has categorically stated that the petitioner was and is not more meritorious than any of the candidates selected in the obc category. the respondents have specifically denied that any of the candidates were not qualified or were not possessing the requisite qualification. the respondent no.2 has also clarified that the advertisement issued on 29.9.2008 was on the basis of a separate requisition made by the state government on 7.5.2008 and these vacancies advertised in the advertisement dated 29.9.2008 are subsequent vacancies for which a separate requisition was made. the respondent has also stated that all the vacancies advertised pursuant to the advertisement dated 19.6.2006 have been filled up and, therefore, the waiting list cannot be implemented. i have heard the learned counsel for the petitioner at length. from a perusal of the averments made by the petitioner in the petition it is evident that though the petitioner has impleaded respondent nos.3 to 9 as respondents in the petition, w.p.no.10023/2009 dr. leena kulthiya vs.  state of m.p. & ors.4 however, there is no averment in the petition as to how these respondents are either not eligible or qualified for appointment on the post of assistant professor except for making bald allegations in para 5.7 of the petition to the effect that “few of the candidates were not qualified as they are not possessing the requisite qualification on the last date of submitting the application form.” the respondents have specifically denied these allegations made by the petitioner. in the absence of specific averments in respect of disqualification of each of the private respondents, i find that the petitioner has failed to make out any case to the effect that the respondents were in any manner not qualified in accordance with the rules for being appointed on the post of assistant professor. it is settled law that a wait-listed candidate can only claim appointment in case any of the selected candidate refuses to join or that the advertised posts remain vacant after exhaustion of the select list and the waiting list has not lapsed on afflux of time. as the respondent no.2, in para-3 of the return, has specifically stated that all the vacancies advertised pursuant to the advertisement dated 19.6.2006 have been filled up by candidates of the select list who are more meritorious than the petitioner, the question of w.p.no.10023/2009 dr. leena kulthiya vs.  state of m.p. & ors.5 operating the waiting list and thereby giving appointment to the petitioner does not arise. the contention of the petitioner to that effect is, therefore, misplaced and misconceived and is accordingly, rejected. it is also clear from a perusal of the averments made by the respondents in the return that the vacancies notified in the subsequent advertisement dated 29.9.2008 are separate and distinct vacancies. the said vacancies were neither included not do they have any relation to the previous advertisement dated 19.6.2006. as the vacancies subsequently notified by the advertisement dated 29.9.2008 were not included in the previous advertisement, therefore, the petitioner has no right to claim appointment on the said post in view of the law laid down by the supreme court in the case of arvind shroti versus state of m.p.and others.2011 (3) mplj 47 in view of the aforesaid facts and circumstances, i find no merit in the petition which is, accordingly, dismissed. ( r.s.jha ) judge mms/-
Judgment:

W.P.No.10023/2009 Dr. Leena Kulthiya vs.  State of M.P. & ORS.1 02.09.2013 Shri R.K.Samaiya, the learned counsel for the petitioner.

Shri S.M.Lal, learned Govt.

Advocate, for the respondent/State.

This petition is pending since 2009.

The return has been filed on behalf of the respondent nos.1 & 2.

The learned counsel for the petitioner submits that he has not prepared the case on merits for the purpose of arguing on admission and he prays for time.

Looking to the fact that the petition of the year 2009, has been listed for hearing on admission, after filing of the return and that the petitioner has obtained an interim order, the prayer for time prayed by the learned counsel for the petitioner is rejected.

Heard on the question of admission.

The petitioner has filed this petition alleging that the petitioner, whose name has been mentioned at Sr.No.1 in the waiting list prepared by the authorities for making appointment on the post of Assistant Professor in the OBC category, has been denied appointment.

The petitioner has also challenged the advertisement dated 29.9.2008 whereby the respondent authorities immediately after publishing the result have issued a fresh W.P.No.10023/2009 Dr. Leena Kulthiya vs.  State of M.P. & ORS.2 advertisement for filing up three backlog posts of the OBC category without considering the petitioner for appointment on these posts.

T The learned counsel for the petitioner also submits and alleges that the respondent authorities have selected and appointed respondent nos.3 to 9 as Assistant Professor ignoring the merit of the petitioner who is having teaching experience of six years in Government Degree College.

On the basis of the said allegations, the petitioner has prayed for calling the entire record of the selection process of OBC candidates in the subject of Political Science and for quashing advertisement dated 29.9.2008 issued by the respondent authorities for filing up backlog posts.

It is submitted that the petitioner being placed at Sr.No.1 in the waiting list is entitled to appointment.

The respondent Public Service Commission has filed a return and has stated that the advertisement dated 19.6.2006 was issued on the basis of a requisition sent by the Higher Education Department specifying the posts and qualifications therein.

It has been stated that the petitioner applied pursuant thereto for appointment on the post of Assistant Professor, Political Science for which 7 posts of OBC category have been advertised out of which 2 were W.P.No.10023/2009 Dr. Leena Kulthiya vs.  State of M.P. & ORS.3 to be filled up from women candidates.

It is submitted that the petitioner secured 47 marks in the examination and was placed at Sr.No.1 in the wait list while the last selected candidate in the OBC category obtained 48 marks.

The respondent no.2 has categorically stated that the petitioner was and is not more meritorious than any of the candidates selected in the OBC category.

The respondents have specifically denied that any of the candidates were not qualified or were not possessing the requisite qualification.

The respondent no.2 has also clarified that the advertisement issued on 29.9.2008 was on the basis of a separate requisition made by the State Government on 7.5.2008 and these vacancies advertised in the advertisement dated 29.9.2008 are subsequent vacancies for which a separate requisition was made.

The respondent has also stated that all the vacancies advertised pursuant to the advertisement dated 19.6.2006 have been filled up and, therefore, the waiting list cannot be implemented.

I have heard the learned counsel for the petitioner at length.

From a perusal of the averments made by the petitioner in the petition it is evident that though the petitioner has impleaded respondent nos.3 to 9 as respondents in the petition, W.P.No.10023/2009 Dr. Leena Kulthiya vs.  State of M.P. & ORS.4 however, there is no averment in the petition as to how these respondents are either not eligible or qualified for appointment on the post of Assistant Professor except for making bald allegations in para 5.7 of the petition to the effect that “few of the candidates were not qualified as they are not possessing the requisite qualification on the last date of submitting the application form.”

The respondents have specifically denied these allegations made by the petitioner.

In the absence of specific averments in respect of disqualification of each of the private respondents, I find that the petitioner has failed to make out any case to the effect that the respondents were in any manner not qualified in accordance with the rules for being appointed on the post of Assistant Professor.

It is settled law that a wait-listed candidate can only claim appointment in case any of the selected candidate refuses to join or that the advertised posts remain vacant after exhaustion of the select list and the waiting list has not lapsed on afflux of time.

As the respondent no.2, in para-3 of the return, has specifically stated that all the vacancies advertised pursuant to the advertisement dated 19.6.2006 have been filled up by candidates of the select list who are more meritorious than the petitioner, the question of W.P.No.10023/2009 Dr. Leena Kulthiya vs.  State of M.P. & ORS.5 operating the waiting list and thereby giving appointment to the petitioner does not arise.

The contention of the petitioner to that effect is, therefore, misplaced and misconceived and is accordingly, rejected.

It is also clear from a perusal of the averments made by the respondents in the return that the vacancies notified in the subsequent advertisement dated 29.9.2008 are separate and distinct vacancies.

The said vacancies were neither included not do they have any relation to the previous advertisement dated 19.6.2006.

As the vacancies subsequently notified by the advertisement dated 29.9.2008 were not included in the previous advertisement, therefore, the petitioner has no right to claim appointment on the said post in view of the law laid down by the Supreme Court in the case of Arvind Shroti versus State of M.P.and otheRs.2011 (3) MPLJ 47

In view of the aforesaid facts and circumstances, I find no merit in the petition which is, accordingly, dismissed.

( R.S.JHA ) JUDGE mms/-