| SooperKanoon Citation | sooperkanoon.com/827327 |
| Subject | Service |
| Court | Chennai High Court |
| Decided On | Mar-26-1997 |
| Reported in | (1997)1MLJ670 |
| Appellant | K. Arumugam and ors. |
| Respondent | State of Tamil Nadu, Represented by Secretary to Government, Home Department and ors. |
| Cases Referred | In Gujarat State Deputy Executive Engineers Association v. The State of Gujarat J.T. |
Shivaraj Patil, J.
1. In all these writ petitions, in substance, the petitioners have sought for a writ of mandamus directing the respondents to appoint the petitioners to the post of Civil Judge (Junior Division) Judicial Magistrate I Class on the basis of inclusion of their names in the reserve list drawn and notified by the Tamil Nadu Public Service Commission on 30.7.1995, on regular basis.
2. The petitioners state, they are practising advocates at various places in the State of Tamil Nadu. The Tamil Nadu Public Service Commission (for short, T.N.P.S.C.) issued a notification inviting the applications from the members of the Bar for direct recruitment and appointment as Civil Judge (Junior Division)/Judicial Magistrate First Class, in the Tamil Nadu State Judicial Service. The petitioners possess the qualifications prescribed for the aforesaid post, and they made applications to the T.N.P.S.C. in the prescribed forms paying necessary fees as required. They were called for an oral interview by the Commission. They fared well in the interview.
3. The T.N.P.S.C. published the list of selected candidates for appointment to the above post. The said notification contained the names of 72 candidates as having been selected for appointment to the said post; the list of 9 candidates was published under the heading 'selected candidates whose results were withheld for want of certain certificates'; below the said list a list of 21 candidates were notified under the caption 'Reserve List'; the said notification also recited that in the event of the selected candidates not joining the vacancies the reserve list-candidates would be appointed to such vacancies. It is further stated that the aforesaid reserve list will be valid till the T.N.P.S.C. draws the-next select list. The petitioners state that their names were included in the aforesaid reserve list published by T.N.P.S.C.
4. The Government issued orders of appointment, appointing all the 81 persons who were selected for appointment as per the Notification who were selected for appointment as per the Notification of the T.N.P.S.C. dated 30.7.1995. The list of 81 persons included 9 candidates whose results were withheld for want of certain certificates. Out of 81 candidates 2 candidates did not join the post or discontinued the training, leaving two of the posts vacant. As per the Notification of the T.N.P.S.C. dated 30.7.1995 two persons included in the reserve list should have been appointed from among the 21 candidates mentioned in the reserve list which included the petitioners also. The respondents did not issue any such appointment in respect of those two vacancies.
5. It is further submitted that after filling up the said 81 vacancies few further vacancies arose. Having regard to the T.N.P.S.C. notification dated 30.7.1995 the select list was to be valid till the next select list is drawn. Hence the candidates included in the same list are eligible and should have been appointed to the said vacancies. The respondents have not made any such appointment still. The T.N.P.S.C. appears to have sponsored to the Government the names of candidates found included in the reserve list including the petitioners for temporary appointment as Civil Judge (Junior Division) in the vacancies that are existing. Rule 11 of the Tamil Nadu State Judicial Service Rules (for short, Rules), contemplate and enable such appointment. The respondent have not made even such appointments.
6. The petitioners further state that till the date of filing the writ petitions, no action had been taken by the T.N.P.S.C. to draw a fresh select list for appointment to the existing vacancies. Under the circumstances the petitioners addressed a representation to the Government requesting them to appoint the petitioners as Civil Judge (Junior Division) in the existing vacancies based on their inclusion in the reserve list published by the T.N.P.S.C, or in the alternative to appoint them temporarily in the existing vacancies as sponsored by the T.N.P.S.C, but there had been no response from the Government.
7. Under the given situation, the petitioners having no other alternative and efficacious remedy, have filed the writ petitions seeking the reliefs as stated above, raising the grounds viz.
(i) on the basis of the performance of the petitioners in the interview, the names of the petitioners were included in the reserve list in the Notification issued by the T.N.P.S.C. stating that the said reserve list would be valid till the next select list is drawn, and that no select list had been drawn till they filed the writ petitions. Hence having regard to the vacancies existed in the post of Civil Judge (Junior Division), the petitioners should have been appointed; (ii) the T.N.P.S.C. had notified a list of selected Candidates for appointment as A.P.Ps. and Civil Surgeons - containing a reserve list as in the case on hand; the State Government after appointing the candidates included in the select list proceeded to fill up the further vacancies from the reserve list notified by the Service Commission; there is no reason or justification for the respondents to adopt a different standard in the case of the petitioners;
(iii) it is not open to the respondents to deny the rights of the petitioners to be appointed to the existing vacancies on any ground, particularly having regard to the fact that the notification drawn by the Commission has specifically laid down that the reserve list will be valid till the next select list is drawn; in the circumstances, failure of the respondents not appointing the petitioners to the existing vacancies is wholly irregular and bad in law;
(iv) even assuming, without admitting that the candidates including the petitioners who were included in the reserve list are not entitled to be appointed on regular basis in the existing vacancies, they were eligible to be appointed at least on a temporary basis as per Rule 11 of the Rules; it appears this Court informed the Government that there are few vacancies in the post of Civil Judge (Junior Division) and had requested the Government to take steps to fill up those vacancies, but the Government has failed to fill up those vacancies;
(v) the T.N.P.S.C. in response to the belated action taken by the Government issued a memorandum on 2.8.1995 to the Government sponsoring the names of the candidates found included in the reserve list including the petitioners for temporary appointment to the post of Civil Judge (Junior Division); even the petitioners were informed by memorandum dated 21.8.1996 to that effect; even thereafter no action was taken to appoint the petitioners on temporary basis. Hence the inaction on the part of the Government in this regard constitutes failure to exercise its jurisdiction on the part of the Government; and
(vi) the petitioners state that alternatively, based on the memorandum issued by the T.N.P.S.C. pursuant to the request of this Court, the Government is obliged to appoint the petitioners to the post at least on a temporary basis which would enable the petitioners to gain experience; and failure on the part of the Government in this regard is against public interest.
8. The respondents 1 and 3 have filed separate counter-affidavits in W.P. No. 15907 of 1996. The learned Counsel for the respondents submitted that they are adopting these counters in respect of other writ petitions also.
9. The respondent No. 1 in the counter-affidavit has stated that based on the proposal sent by the High Court, the Government arrived at the estimate of vacancies for direct recruitment to the post of Civil Judges (Junior Division) for the year 1995-96 i.e., from 22.2.1995 to 21.2.1996 as 82, and intimated the T.N.P.S.C. for selection of candidates; the Commission selected 81 candidates and allotted 81 candidates for giving appointment by the Government; appointment orders were issued for appointment of 81 candidates as' Civil Judges (Junior Division)/Judicial Magistrates I Class in the Tamil Nadu State Judicial Service; one vacancy reserved for scheduled tribe was not filled up due to non-availability of qualified candidate and it had been carried over to next selection.
10. During February, 1996, the Registrar, High Court requested the Government to move the T.N.P.S.C. to release 18 candidates from the reserve list kept by the service commission based on the selection made for the year 1996-97 in order to fill up the vacancies in the cadre of civil Judges (Junior Division) which were likely to arise due to promotion to higher categories. Candidates in the reserve list can be appointed to a vacancy that may arise due to non-joining of candidates from the main list appointed to the post, but they cannot be appointed to the vacancies of subsequent year.
11. It is submitted that in view of the urgent need of the High Court, the Government decided to move the T.N.P.S.C. to release 18 candidates immediately from the reserve list already drawn by the T.N.P.S.C. for appointment as Civil Judge (Junior Division) under Rule 10(a)(i) of the General Rules for the Tamil Nadu State and Subordinate Services on the condition that they should be specifically informed that the services are purely temporary and will be terminated on joining of candidates salectec by the T.N.P.S.C. from the main list in the next selection 1996-97, with instruction that in order to safeguard their own interest from ousting, they should appear for the examination to be held for the subsequent selection and quality themselves. In that view, T.N.P.S.C. was addressed for releasing 18 candidates from the reserve list for appointment on temporary basis. The T.N.P.S.C. sent a list of 18 candidates accordingly from the reserve list. In the meanwhile the High Court re-considered its earlier proposal and requested the Government to treat its proposal for appointment of 18 candidates from the reserve list for the post of Civil Judges (Junior Division) as withdrawn. Based on the request of the High Court the Government informed the T.N.P.S.C. accordingly. Hence the petitioners cannot make any claim for appointment to the vacancies of subsequent years.
12. Referring to the decisions of the Supreme Court in State of Bihar and Anr. v. Madan Mohan Singh and Ors. (1994) 2 AIS J. II and Ashok Kumar v. Chairman, B.S. Recruitment Board : (1996)ILLJ1103SC , it is stated that the select list prepared will hold good only to fill up vacancies notified and not to fill up the vacancies that had arisen subsequently. It is further submitted that the High Court in its letter dated 26.9.1996 requested the Government to recruit 100 candidates by conducting viva-voce test only for the year 1996-97. The Government were also informed that the release of 20 candidates kept in the reserve list need not be necessary as the earliest request of the High Court was withdrawn. Now the T.N.P.S.C. by their notification has called for applications for 100 vacancies in the post of Civil Judges (Junior Division)/ Judicial Magistrates I Class by way of direct recruitment.
13. With regard to the legal submissions of the petitioners, it is submitted that the contentions of petitioners arc based on a total misconception of the purpose of having reserve list which is governed by the first and second provisos to Rule 10(a)(i) of the general rules for Tamil Nadu State and Subordinate Service Rules. Various judicial pronouncements show the benefit of selection that are applicable to regular panel will not apply to persons empanelled in the reserve list. It is wrong to contend that any right is vested in the petitioners which is sought to be divested by the present notification calling for applications to fill up the future vacancies. No right is vested in a person to have been provisionally selected. While so the persons or the petitioners who are only in the reserve list cannot have any legal right whatsoever. Thus the respondent No. 1, on the basis of the counter-affidavit, has prayed for dismissal of the writ petition.
14. The counter-affidavit filed by respondent No. 3 is substantially similar to the counter-affidavit filed on behalf of respondent No. 1. The stand of respondents 1 and 3, looking to the counter-affidavits, is more or less the same1.
15. However, respondent No. 3 in the counter-affidavit has further stated that out of the 81 candidates selected. Serial No. 42 Thiru Karthikeyakumar did not turn up for training and expressed his inability to join the above post. Serial No. 32 Thiru Megavarnam though reported for training was found to be physically not fit, due to his blurred vision, to continue the training. Later he submitted his resignation which was accepted. The High Court addressed the Government to fill up the only one vacancy which arose due to the non-joining of S. No. 42 Karthikeyakumar by releasing one candidate from the reserve list in B.C. category, and the matter is pending. The third respondent also has prayed for dismissal of the writ petitions.
16. The learned Counsel for the petitioners contended that-
(i) the respondents were not right and not justified in not giving appointments to the petitioners and others whose names were included in the reserve list prepared and notified by the T.N.P.S.C. when the vacancies were available, and the said list is valid till the next list is drawn, and admittedly when no next select list is drawn till the filing of the writ petitions; (ii) the T.N.P.S.C. had notified the list of selected candidates, containing the reserve list, for appointment as A.P.Ps. and Civil Surgeons as in the case on hand; the Stale Government after appointing the candidates included in the select list, proceeded to fill up further vacancies from the reserve list notified by the Public Service Commission; but in the case of petitioners and others included in the reserve list, the same procedure was not followed and thus there has been discrimination;
(iii) Alternatively, there was absolutely no justification for the respondents not to appoint two candidates out of the reserve list, when out of 81 selected candidates two candidates did not join the post or discontinued the training, particularly when, in the Notification itself, it is specifically stated that, in the event of the selected candidates not joining the vacancies, the candidates in the reserve list would be appointed to such vacancies;
(iv) at least till a fresh select list is drawn for appointment to the existing vacancies, the candidates in the reserve list published ought to have been appointed temporarily in the existing vacancies as per Rule 11 of the Rules but even after informing some of the petitioners that they would be considered for temporary appointment they were not appointed.
17. The learned Additional Government Pleader appearing for the respondents, based on the counter-affidavit filed, submitted that-
(i) the State Government arrived at the estimate of vacancies for direct recruitment to the post of Civil Judges (Junior Division)/ Judicial Magistrates I Class, for the year 1995-96 i.e., from 22.2.1995 to 21.2.1996 as 82, and accordingly intimated the T.N.P.S.C. for selection of 82 candidates; the Commission selected 81 candidates and allotted them for appointment by the Government as Civil Judges (Junior Division)/Judicial Magistrate First Class; one candidate could not be selected as against the reserve category of Scheduled Tribe for want of qualified candidate in that category, and as such it has been carried over to the next selection;
(ii) candidates in the reserve list could be appointed to vacancies that may arise due to non-joining of candidates from the main list i.e., select list, but they cannot be appointed to the vacancies of subsequent year;
(iii) in February, 1996 the Registrar of the High Court requested the State Government to move the T.N.P.S.C. to release 18 candidates from the reserve list in order to Till up the vacancies in the cadre of Civil Judges (Junior Division) which were likely to arise due to promotion to higher categories; the State Government accordingly decided to move the T.N.P.S.C. to release 18 candidates from the reserve list drawn by the T.N.P.S.C. for appointment as Civil Judges (Junior Division) under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Services Rules, on condition that they should be specifically informed that their services arc purely temporary and will be terminated on joining of candidates selected by the T.N.P.S.C. from the main list in the next selection 1996-97, and with further instruction that in order to safeguard their own interest from ousting, they should appear for the examination to be held for the subsequent selection and quality themselves. The T.N.P.S.C. in response, sent a list of 18 candidates accordingly from the reserve list. But in the meanwhile the High Court re-considered its earlier proposal and requested the Government to treat its proposal for appointment of 18 candidates from the reserve list for the post of Civil Judges (Junior Division) as withdrawn. In turn the State Government informed the T.N.P.S.C. about the withdrawal of the proposal by the High Court;
(iv) the select list prepared will hold good only to fill up vacancies notified, and it will not hold good to fill up the vacancies that had arisen subsequently in view of the judgments of the Supreme Court. The High Court in its letter dated 26.9.1996 requested the Government to recruit 100 candidates by conducting viva-voce test only for 1996-97; now the T.N.P.S.C. by their notification has called for applications for 100 vacancies in the y post of Civil Judges (Junior Division)/Judicial Magistrates First Class by way of direct recruitment; and
(v) the petitioners are basing their claim on a total mis-conception of the purpose of having reserve list which is governed by the first and second provisos to Rule 10(a)(i) of the Tamil Nadu State and Subordinate Services Rules; the benefit of selection that arc applicable to regular panel will not be available to the candidates included in the reserve list, and the petitioners do not have any vested right to seek appointment; even a person provisionally selected cannot claim any legal right as such.
18. We have carefully considered the submissions made by the learned Counsel for the parties.
19. Applications were invited by T.N.P.S.C. for appointment against 82 vacancies (approximately) in the post of Civil Judges (Junior Division)/Judicial Magistrate First Class, in the Tamil Nadu State Judicial Service by direct recruitment under the provisions of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 1995, by Notification dated 1.6.1995. Pursuant to the same, the T.N.P.S.C. made selection and issued Notification dated 30.7.1995 selecting 81 candidates. The list of 81 candidates includes 9 candidates whose results were withheld for want of certain certificates.
20. Out of 81 candidates selected, two candidates did not join the post or discontinued the training leaving two posts vacant. The same Notification dated 30.7.1995 contained a list of 21 candidates under the reserve list. As to the 81 selected candidates are concerned it is stated that they were provisionally selected. As to the reserve list, in the said notification, it is stated that the said list is prepared to fill up the vacancies in the event of some of the selected candidates not joining duty, and that the said reserve list will be in force until the drawal of the next select list by the Commission. Memorandums also appear to have been sent to the candidates in the reserve list. One such memorandum dated 2.8.1995 issued to one of the petitioners K. Arumugham in W.P. No. 15907 of 1996, reads:
Arumugam K. Thiru. is informed that he/she has not been selected for appointment to the post of Civil Judge (Junior Division Judicial Magistrate, First Class) in the Tamil Nadu State Judicial Service, 1995.
2. However, his/her name has been included in the 'Reserve List' which will be in force for selection in the event of selected candidates, fail to join duty and until the drawal of next select list by the Commission.
21. It appears the T.N.P.S.C. further issued memorandums to the candidates in the reserve list on 21.8.1996 stating that their names had been sponsored to the Government for temporary appointment as Civil Judge (Junior Division)/ Judicial Magistrate-1 Class. The memorandum issued to the same petitioner K. Arumugam reads:
Thiru/Tmt. Selvi K. Arumugam (221128) is informed that his/her name which was kept in the Reserve List for the post of Civil Judge (Junior Division)/Judicial Magistrate-1 Class) 1995 has been sponsored to the Government in the Home, Prohibition and Excise Department, Fort St. George, Madras - 600 009 for temporary appointment as Civil Judge (Junior Division/Judicial Magistrate-1 Class).
He/she is also informed that this temporary appointment does not confer on him/her any claim for his/her regular appointment and he/she should appear for the next examination to be conducted by the Commission and get selected if he/she is to be absorbed regularly in the said post.
He/she may await further communication regarding his/her temporary appointment from the Secretary to the Government of Tamil Nadu, Home Prohibition and Excise Department, Madras-600009.
22. Rule 10(a)(i) of the Tamil Nadu State and Subordinate Services Rules, to the extent it is relevant, reads:
Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may temporarily appoint a person, who possesses the qualifications prescribed for the post otherwise than in accordance with the said rules;
Provided that no appointment by direct recruitment under this clause shall be made of any person other than the one sponsored by the Tamil Nadu Public Service Commission from its regular or reserve list of successful candidates to any of the posts within the purview of the Tamil Nadu Public Service Commission:
Provided further that the reserve list of successful candidates shall be in force until the regular list of successful candidates is drawn up subsequently; and that candidates shall be allotted from such reserve list for the vacancies in the place of those who have not joined duty.
Rule 11 of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 1995 deals with probation relating to persons appointed to the post in judicial service.
23. The learned Counsel for the petitioners emphasised that on 30.7.1995 when the T.N.P.S.C. published the select list of candidates including 21 persons in the reserve list, there were more than 81 vacancies, and subsequently also few more vacancies had arisen as is clear from the very fact that the High Court had requested the Government to get 18 candidates released from the T.N.P.S.C. for appointment as Civil Judges (Junior Division/Judicial Magistrate, First Class) on temporary basis; the vacancies notified were only approximate. The fact remains that applications were invited by T.N.P.S.C. only for 82 posts. In the context of the facts of this case, use of the word 'approximately' in the Notification stating estimated vacancies as 82 does not advance the case of the petitioners.
24. It is not disputed that two candidates out of 81 selected candidates did not join the post. Reading the very notification of T.N.P.S.C. dated 30.7.1995 shows that the candidates from the reserve list will be appointed in the event of the candidates selected not joining duty. Paragraph 2 of the memorandum dated 2.8.1995 issued to the candidates in the reserve list extracted above, in clear terms, indicated that the reserve list will be in force for selection, in the event selected candidates fail to join duty, and the reserve list will be valid till the drawal of the next select list by the Commission.
25. It may also be stated here that in the same memorandum, it is clearly stated that the candidates in the reserve list have not been selected for appointment to the post of civil Judge (Junior division/Judicial Magistrate, First Class). Even in paragraph 2 of the counter-affidavit of the first respondent, it is stated,
Candidates from the reserve list can be appointed to a vacancy that may arise due non-joining of candidates from the main list appointed to the post, but they cannot be appointed to the vacancies of subsequent year.
As can be seen from the second proviso to Rule 10(a)(i) of the Tamil Nadu State and Subordinate Services Rules, the candidates shall be allotted from reserve list for the vacancies in the place of those who have not joined duty. In the light of what is stated above, we do not find any impediment or difficulty in holding that the two eligible candidates in the reserves list of 21 candidates including the petitioners ought to have been appointed, to fill up the respective vacancies of the two persons who did not join duty.
26. On the basis that the reserve list will be valid until the next select list is drawn, the learned Counsel for the petitioners emphasised that the candidates in the reserve list ought to have been appointed when admittedly there were vacancies did not join duty, and the High Court itself had requested for appointment of 18 candidates. We are not able to agree with this line of argument for the reasons more than one. The vacancies notified were only 82; 81 candidates were selected as no qualified candidate was available as against on post reserved for Scheduled Tribe; in the notification the number of vacancies were estimated to be 82 (approximately) as on the date of notification. That did not mean that selection and appointments could be made so as to include all the candidates in the reserve list. The object and purpose of the reserve list is very clearly spelt out as already stated above. Assuming there were more than 82 vacancies on 1.6.1995, but that itself did not confer any right on the petitioners to claim appointment on the basis that their names were included in the reserve list.
27. In the select list dated 30.7.1995 itself it is clearly stated that the candidates in the reserve list will be appointed in the event of the selected candidates not joining duty. In the memorandum dated 2.8.1995, in clear terms and unambiguously, it is stated that the candidates in the reserve list have not been selected for appointment to the post of Civil Judge (Junior Division/Judicial Magistrate, First Class). This itself negatives the contention of the petitioners. In paragraph 2 of the memorandum it is again stated that the names of the candidates included the reserve list will be in force for selection in the event of selected candidates failing to join duty. There is further indication in Rule 10(a)(i) of the Tail Nadu State and Subordinate Services Rules as to how the reserve list is to be operated and for what purpose.
28. Much cannot be made out of the statement in the notification dated 30.7.1995 and the memorandum dated 2.8.1995 that the reserve list will be in force till the drawal of the next select list. The next select list may be in quick succession or later. All that can be said is, the moment next select list is drawn the purpose of the present reserve list is lost with reference to the said selection. The object of keeping the reserve list in force till the next select list is drawn appears to be that pursuant to the select list, till the next selection is made, if selected candidates does not join duty or discontinue, the candidates in the reserve list could be considered before the next select list is drawn.
29. There is yet another aspect, viz., a candidate in the reserve list may be considered for temporary appointment as per Rule 10(a)(i). Whether Rule 10(a)(i) can be invoked for appointing judicial officers in the Subordinate Judiciary of a State, is a matter which need not be examined by us in this case. However, the petitioners had sought for appointment alternatively on temporary basis, and even the High Court had moved the State Government in that regard. It is for the authorities concerned to consider whether the request of the petitioners for temporary appointment could be examined and appointments could be made. But the petitioners cannot claim appointments even on temporary basis as a matter of right. We may state here itself that merely because once the High Court had moved the State Government to appoint 18 candidates on temporary basis, it did not confer any right on the petitioners, particularly so when the proposal was subsequently withdrawn in view of calling for applications to fill up 100 vacancies in the cadre of Civil Judges (Junior Division/Judicial Magistrate, First Class). Rule 11 of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 1995, in our view, has no application as it relates to only probationers after the appointment, and not to the candidates in the reserve list.
30. The Supreme Court in the case of Prem Singh and Ors. v. Haryana State Electricity Board and Ors. : (1996)IILLJ786SC referring to number of decisions of the Apex Court itself, in paragraph 25, has stated thus:
From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case.
31. In State of Bihar v. Madan Mohan Singh, (1994) 3 S.C.C. (Supp.) 308, the Apex Court has held that advertisement and the whole selection process were meant only for 32 vacancies, and that process came to an end as soon as those 32 vacancies were filled up. In that case 32 vacancies were advertised, but a select list of 129 candidates was prepared, and a question arose whether more candidates could be appointed on the basis of the said select list. The Apex Court held that once 32 vacancies were filled up, the process of selection for those 32 posts got exhausted and came to an end. It was also held that if the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and selection process. In the decision in Prem Singh and Ors. v. Haryana State Electricity Board : (1996)IILLJ786SC , the Apex Court has referred to and relied on few other decisions of the Supreme Court taking similar view.
32. In Gujarat State Deputy Executive Engineers Association v. The State of Gujarat J.T. (1994) 3 S.C. 559, while dealing with the waiting list prepared on the basis of the competitive examination, the Supreme Court, in paragraph 9, has stated thus:
A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the costs of entire set of fresh candidates either from the open or even from service.
33. Thus in view of the facts of the case on hand, looking to the very terms of the Notification dated 30.7.1995 containing the select list and reserve list of candidates, and the memorandum dated 2.8.1995 issued to the candidates in the reserve list, and the law laid down by the Apex Court as aforementioned, we have no hesitation to reject the contentions of ' the learned Counsel for the petitioners that the candidates in the reserve list should have been appointed as against the vacancies in excess of the 82 notified vacancies, while accepting their contention that in place of two of the candidates out of the 81 selected candidates not joining duty, the two eligible candidates out of the reserve list ought to have been appointed as Civil Judges (Junior Division/Judicial Magistrates, First Class).
34. The contention of the petitioners that in respect of other services, candidates in the reserve list were appointed, and so there was discrimination in the case of petitioners, in our view, is untenable, having regard to the law laid down by the Apex Court, and also in view of the facts and circumstances of the cases on hand, relating to recruitment of Judicial Officers in the State who constitute a separate class by themselves.
35. In the result, for the reasons stated, we pass the following order:
The two eligible candidates in the respective categories out of the reserve list of 21 candidates shall be appointed as Civil Judges (Junior Division/Judicial Magistrate, First Class) in the two vacancies caused by the two candidates in the select list of 81 candidates not joining duty, as expeditiously as possible, at any rate, within a period not later than four weeks from the date of receipt of copy of this order. The matter of training and posting of the two candidates who shall be appointed as stated above is left to the High Court. The writ petitions are allowed only to this extent, and they are dismissed in other respects. No costs. Consequently W.M.P. Nos. 21850, 22372, 22375, 22545, 22546, 27134 and 27135 of 1996 are also dismissed.