Waitlisted candidates have no right to appointment to government service in absence of mandatory rule : Supreme Court

The Order, by a division Bench of the Supreme Court, overruled a Karnataka High Court decision, and held that public service vacancies are to be filled up as per the state government’s notified Rules.

THE Supreme Court has held that the State’s duty to fill up vacancies from the candidates’ waiting list in government service appointment can arise only if the rules governing the selection process mandatorily provide for the same. It further clarified that in the absence of such a mandate, the decision to fill all the vacancies from the waiting list is left to the wisdom of the State.

A division Bench comprising the Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justice P.S. Narasimha delivered an Order to this effect on May 19 on an appeal filed by the Karnataka government challenging a decision of the Karnataka High Court directing the state government to appoint as Assistant Teachers candidates named in the additional list (waiting list) so as to appoint the respondent, Bharathi S.

The respondent applied for the post of assistant teacher in the government primary school in the Chikkaballapur district. On January 20, 2016, the government issued a final list of the selected candidates. The respondent was not named in the list. However, her name found a place in an additional list published on February 29, 2016. The additional list had a note which stated that mere inclusion in the list would not confer a right to appointment, and that the selection of the candidates named in the additional list is provisional and subject to the directions received by the government from time to time.

On July 21, 2016, one of the selected candidates made a representation that she was not inclined to take up the post. On September 8, 2016, the respondent addressed a letter to the government to consider her candidature since she was the only candidate in the additional list. On February 17, 2017, the state government rejected the representation made by the respondent on the basis of the decision of the government on April 11, 2013, which provides that an additional list shall remain valid up to six months from the date of its publication or the date when all the posts are filled up, whichever is earlier. Since the additional list was published on February 19, 2016, it was valid only up to August 28, 2016. As the respondent had made the representation only on September 8, 2016, which was beyond the six-month period, her request was rejected.

The respondent unsuccessfully challenged the decision of the government before the Karnataka Administrative Tribunal (KAT). The respondent went on to challenge this decision by the KAT before the Karnataka High Court. The high court quashed the decision of the KAT and directed the government to appoint the respondent. It is this decision that was the subject matter of challenge before the Supreme Court.

The respondent sought to argue that the decision of the state government dated April 11, 2003, on the basis of which her representation was rejected, was merely an executive instruction which could not override the relevant Rules, that is, the Karnataka Education Department Services (Department of Public Instructions) (Recruitment) Rules, 1967, which govern recruitment to the post of Assistant Teacher.

The relevant portion of the Rules, being Entry 66 of the Schedule to the Rules, concerning ‘Primary School Assistant Cadre’, is as follows:

The selection authority shall prepare an additional list of candidates not included in the main list not exceeding ten per cent of the vacancies available. The list so prepared shall be published in the official gazette and shall cease to be operative from the date of publication of notification for the subsequent recruitment of primary school teachers under these rules or any other rules specifically made for the recruitment of primary school teachers. However, the recruitment shall be limited to the extent of notified vacancies only.”

On the basis of this provision, the respondent argued that the additional list would continue to subsist till a subsequent notification for the recruitment of primary school teachers is issued.

The Supreme Court Bench, however ruled that on a close reading of the relevant provision applicable to the services, that is, Entry 66, it is clear that there is no obligation on the State to make appointments.

Mere publication of the Additional List does not create any right to be appointed. There is no such mandate in the Rule. Entry 66 of the Rules merely provides that the selection authority shall prepare and publish an additional list of candidates not exceeding 10 percent of the vacancies and the said list shall cease to operate from the date of publication of notification for subsequent recruitments,” the Bench held.

The Bench added that the conclusion of the high court that the respondent was unaware of the resignation of the appointed candidate would have no bearing on the operation of the Rule since the operation of the additional list, which is to be published in the official Gazette, will depend upon the time specified in the Rules and not as per the knowledge of individual candidates.

Click here to view the full order of the Supreme Court in The State of Karnataka & Ors versus Smt. Bharathi S.

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