Dismissed

Jitendra Dayaldas Fulwani v. Chairman and Managing Director and Others of M.S.E.T.Co. Ltd.

Bombay HC3 Dec 2018WP/8134/2013

Case brief

AI extract

What is this about?

This writ petition challenges the dismissal of the petitioner from the wait list. The Court held that once the advertised vacancies are filled by selected candidates, the wait list becomes exhausted. Wait lists are for contingencies only and cannot be operated against future vacancies arising after appointments are made.

What did the court decide?

Writ petition dismissed with no order as to costs; Rule discharged. Petitioner not entitled to appointment.

Jitendra Dayaldas Fulwani Vs Chairman and… — Pension and Retirement Benefits | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 8134 OF 2013

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Jitendra Dayaldas Fulwani,
Age: 31 Years, Occu.: Service,
R/o.: Bhusawal, Dist.: Jalgaon.. Petitioner

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Versus

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1. Chairman and Managing Director,

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2. The Executive Director (HR),

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3. The Chief Engineer (HRD), All these respondents no. 1 to 3 are officers of Maharashtra State Electricity Transmission Company Ltd. having Corporate Office in “E” Block, Plot no. C-9, “Prakashganga”, 7^th Floor, Bandra-Kurla Complex, Bandra (East), Mumbai-51

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4. The Chief Engineer, EHV (CC O&M) Zone, Maharashtra State Electricity Trnasmission Company Ltd., 3^rd Floor, City Arcade, Ingale Nagar, Jail Road, Nashik

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5. The Superintending Engineer, Maharashtra State Electricity Transmission Company Ltd., Bhusawal, Dist.: Jalgaon

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6. The Executive Engineer, Maharashtra State Electricity Transmission Company Ltd., 400 kV RS Division, Khadka-Bhusawal, District Jalgaon

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`7.`	`Ram Tukaram Shelke,` `C/o. Office of the Executive Engineer,` `MSETCL, Testing Division, Solapur,` `Juni Mill Compound, Murarji Peth,` `Solapur-413 001`
`8.`	`Vijay Baburao Aware,` `C/o. Office of the Chief Engineer,` `State Load Despatch Centre,` `Thane Belapur Road, Airoli,` `Post: Airoli, Navi Mumbai – 400 708`
`9.`	`Umesh Shankar Bhagat,` `C/o. Office of the Chief Engineer (P&D),` `MSETCL, Prakashganga, Plot No.C-19,` `E-Block, Bandra Kurla Complex,` `Bandra (E), Mumbai – 400 051`
`10.`	`Amlesh Ankushrao Lonare,` `C/o. Office of the Superintending Engineer,` `MSETCL, 2`^nd`Floor, Vidyut Bhavan,` `Katol Road, Nagpur-13`
`11.`	`Niting Wasudeo Angaitkar,` `C/o.: EHV (O&M) Dn.,MSETCL, Yavatmal,` `3`^rd`floor, Vidyut Bhavan, Arni Road,` `Yavatmal-445 001`
`12.`	`Yogesh Gopal Pachpande,` `C/o. Office of the Chief Engineer (P&D),` `MSETCL, Prakashganga, Plot No.C-19,` `E-Block, Bandra Kurla Complex,` `Bandra (E), Mumbai – 400 051`
`13.`	`Abhijit Chandrakant Dhamale,` `C/o. EHV O&M Division, Kolhapur,` `MSETCL, Bapat Camp,` `Post: Market Yard,` `Kolhapur-416 005`

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14. Kishor Chandrakant Holey, C/o. Office of the Chief Engineer (STU), MSETCL, Prakashganga, Plot No.C-19, E-Block, Bandra Kurla Complex, Bandra (E), Mumbai – 400 051 .. Respondents

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Mr. Ajay S. Deshpande, Advocate for the
Petitioner.

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Mr. V. S. Badakh, A.G.P. for the Respondent /
State.

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Mr. S. V. Adwant, Advocate for Respondent No. 3.

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CORAM: S. V. GANGAPURWALA & R. G. AVACHAT, JJ. DATE: 03rd DECEMBER, 2018

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ORAL JUDGMENT ( Per S. V. Gangapurwala, J. ):

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1. Rule. Rule returnable forthwith. With the

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consent of learned counsel for respective parties
matter is taken up for final hearing.

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2. The petitioner is working as Deputy Executive

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Engineer with respondent at Bhusawal. The
respondent nos. 2 and 3 issued an Advertisement
No. 3 of 2011 inviting applications for various

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posts including the post of Executive Engineer

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(Transmission). The petitioner pursuant to the

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said advertisement applied for the post of

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Executive Engineer (Transmission) and Deputy

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Executive Engineer (Transmission) in the selection
process from open competition category. Four posts
of Executive Engineer (Transmission) were
available for open competition category. The
petitioner was selected for the post of Deputy
Executive Engineer (Transmission) and appointment
order is issued to him for the post of Deputy
Executive Engineer (Transmission). The petitioner
claims appointment to the post of Executive
Engineer (Transmission).

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3.Four persons above the petitioner found their
place in the selection list. The petitioner was
placed at serial no. 1 in the wait list. The
select list and the wait list was published on
20.10.2011. Two persons on or about February and
May – 2012 were promoted, and two posts of
Executive Engineer (Transmission) as on 31.03.2012
from open category were vacant. The petitioner

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made an application to consider him for
appointment as he is at serial no. 1 in the wait

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list. On or about 26.11.2012, the respondents
informed the petitioner that the selected
candidates are appointed and have joined their
duties. There is no scope in operating the wait
list. The petitioner pursuant to the present writ
petition seeks direction against the respondents –
authorities to issue appointment order in his
favour, thereby appointing him on the post of
Executive Engineer (Transmission) as per the
Advertisement No. 3 of 2011.

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4.Mr. Deshpande, learned Advocate for the

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petitioner, strenuously contends that after having
been successful in the selection process he was

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kept in the wait list at serial no. 1 from open
competition category. The note to the
advertisement clarifies that the number of
vacancies and reservation for Backward class
indicated for different categories is provisional

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and likely to change. Said change will not be
notified either in newspaper, on website or
intimated to the candidates. Condition no. 11

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pursuant to the result of the recruitment for the
Executive Engineer (Transmission) clarified that
the select list will not confer any right on the
candidate for immediate appointment as the select
list is meant for the entire year i.e. 2011 –
2012. The appointment letters will be issued
taking into account availability of the vacancies,
reservation for backward classes etc. The note in
the advertisement and Clause 11 would suggest that
the list is meant for entire year 2011 – 2012, and
as and when the vacancy occurs for the post of
Executive Engineer (Transmission) during the
entire year 2011 – 2012, the select list and / or
the wait list would be operated and the vacancy
shall be filled in from them. Two vacancies
existed as on 31.03.2012 i.e. withing the period
of five months from the publication of the select
list. The case of the petitioner is required to
be considered as against those vacancies.

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5.Mr. Deshpande, the learned Advocate further

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submits that the respondents are governed by the

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Maharashtra State Electricity Board Classification
and Recruitment Regulations, 1961 (hereinafter
referred to 'Regulations - 1961'). Regulation
29(a) of the Regulations – 1961, provides that the
selection committee concerned may recommend names
of suitable candidates selected after due
advertisement to be kept on the wait list for
consideration against posts reserved for direct
recruitment, and such list may be deemed to be
valid for 12 months. The Technical Board, Accounts
Board, Board (Administration) and Technical
Director are authorised to extend the validity of

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the wait list of the candidates selected by
various selection committees for the posts in the
respective streams, whenever considered necessary.
It further states that such persons who are likely
to be absorbed in appropriate vacancies within a
reasonable period may be informed of their names
having been kept on the wait list for being
absorbed in future vacancies. The learned counsel
submits that Regulation 29 (a) of Regulations -

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1961, specifically empowers the persons in the
wait list to be considered for absorption towards
future vacancies. Regulation 29 (a) of
Regulations - 1961 has not been adhered to but is
flouted by the respondents.

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6.Mr. Deshpande, learned Advocate for the

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petitioner further submits that Regulation 29 (a)
of Regulations – 1961, is invoked on number of
occasions and the future vacancies i.e. more
number of posts than advertised have been filled

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in by the respondents from the wait list

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candidates. The learned Advocate refers to the
appointment of Mr. Desai S. M., Mr. Deo Rajiv
Mukund, Mr. Pande Vasant Dinkarrao and Mr.
Khachane Vilas Krishna. Mr. Kachane was

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appointed on the post of Executive Engineer after
10 months. The wait list candidates were given
appointment. The learned Advocate referring to the
judgment of the Apex Court in case of Prem Singh
and others Vs. Haryana State Electricity Board and
others reported in 1996 SCC (4) 319, submits that

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in the said case the Apex Court has safeguarded
the appointments made against the future vacancies
that had arisen because of the retirement of some

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persons. It was observed that anticipated
vacancies can be considered. In the present case,
because of the promotion the post of Executive
Engineer became vacant and there was no impediment
to absorb the petitioner who was at Serial No. 1

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of the wait list to the post of Executive
Engineer. The respondents are conveniently
applying Regulation 29 (a) of Regulations – 1961,
in favour of the persons they want to favour at
the same time is discriminating the petitioner.

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7.Mr. Deshpande, the learned Advocate further
submits that the participation in the subsequent
selection process in the year – 2014, and the
petitioner being unsuccessful in the same would
not affect the right of the petitioner to claim

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appointment pursuant to Advertisement No. 3 of

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2011, wherein the petitioner was selected at

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serial no. 1 in the wait list. The learned

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Advocate submits that even the claim of the

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petitioner was forwarded by respondent no. 4 to
the Chief General Manager (HR). The same ought to
have been considered. The learned Advocate submits

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that on the subsequent vacancy one Mr. Rajurkar
candidate in the wait list from Advertisement No.
7 of 2016, was given appointment to the post of
Chief Engineer (Transmission). This shows the
arbitrary act of the respondents. The learned
Advocate also relies on the following judgments to
buttress his submission that in case of vacancy
the claim of the candidate in the wait list can be
considered-

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(i) State of J & K. and others Vs. Sanjeev Kumar and others dated 24.02.2005 in Appeal (Civil) No. 1396 – 1397 of 2005.

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(ii) In judgment of the Punjab and Haryana High Court in a case of Varun Kumar Vs. Haryana Staff Selection Commissioner and others dated 17.07.2013 in CWP No. 15403 of 2011.

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(iii)The judgment of the Division Bench of this Court in a case of Rajabhau Shamrao Chavan Vs. The State of Maharashtra and another dated 18.02.2010 in Writ Petition no. 6380 of 2009.

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(iv) The judgment of the Gujarat High Court

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in case of Patel Rakeshkumar Dharamdas Vs. State of Gujarat and others decided on 06.05.2011.

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(v) The learned counsel also relies on the judgment of the Apex Court in case of BSNL and others Vs. Abhishek Shukla and another in dated 08.04.2009 in Civil Appeal No. 2239 of 2009.

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8.Mr. Adwant, the learned Advocate for
respondent no. 3 submits that the petitioner was
selected in the wait list at serial no. 1 for the
post of Executive Engineer (Transmission). Four

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posts were meant for open category. All four

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selected candidates had joined the post and
continued. In view of that, the petitioner cannot

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claim any right to be appointed. Once the post
advertised are filled in and candidates have
joined on all the posts it is not necessary to
operate the wait list. The learned Advocate
submits that the petitioner does not get any right
to claim appointment only because his name figured

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in the wait list. The learned Advocate relies on

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the following judgments of the Apex Court-

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(i) Manoj Manu and another Vs. Union of India reported in (2013) 12 SCC 171,

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(ii) Vijay Kumar Pandey Vs. Arvind Kumar Rai and others reported in (2013) 11 SCC 611,

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(iii)State of Orissa and anohter Vs. Rajkishore Nanda and others reported in (2010) 6 SCC 777,

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(iv) Rakhi Ray and others Vs. High Court of Delhi and others reported in (2010) 2 SCC 637,

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(v) Mukul Saika and others Vs. State of Assam and others reported in (2009) 1 SCC 386,

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(vi) K. Vijaya Lakshmi Vs. State of A.P.

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reported in (2013) 5 SCC 489,

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(vii)Suneeta Aggarwal Vs. State of haryana and others reported in (2000) 2 SCC 615,

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(viii) All India SC & ST Employees

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Association and another Vs. A. Arthur Jeen and others reported in (2001) 6 SCC 380

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So also, the judgment of the High Court

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of Bombay in a case of Apurba Kumar and

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others Vs. The Institute of Banking Personnel Selection and others dated 02.10.2018 in Writ Petition (L) No. 1064 of 2017 .

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9.According to the learned Advocate, the
appointment of Mr. S. S. Rajurkar from the wait
list candidate to the post of Chief Engineer
pursuant to the advertisement of 2016 was as one
time measure as there was an urgency to fill in
the post of Chief Engineer (Transmission). The
noting itself states that such operation of the

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wait list shall not have bearing on any past and
future cases and instances.

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10. We have considered the submissions canvassed

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by the learned counsel for respective parties.

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11.The respondent nos. 1 to 4 issued
advertisement bearing no. 3 of 2011 inviting
applications for various posts. The petitioner
applied from open competition category for the
post of Executive Engineer (Transmission), and
also for the post of Deputy Executive Engineer
(Transmission). The petitioner was selected and
issued the appointment order for the post of
Deputy Executive Engineer (Transmission). The
petitioner was kept in the wait list for the post
of Executive Engineer (Transmission). Four posts
were meant for Executive Engineer (Transmission)
from open competition category. The four persons
in the select list above the petitioner accepted
the appointment orders and joined the posts. As
per the advertisement all four posts meant for the
Executive Engineer (Transmission) are filled in.

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The note to the advertisement clarifies that the
number of vacancies and reservation for Backward

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class indicated for different categories is

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provisional and likely to change and that would
not give any right to the candidate. The condition
no. 11 provides that select list will not confer

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any right on the candidates of immediate
appointment as the select list is meant for entire
year and the appointment orders will be issued
taking into account availability of the vacancies

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reserved for backward class. The note to the
advertisement and condition no. 11 as referred
supra would not enure to the benefit of the
petitioner. The said clause is suggestive of the
fact that the wait list is operated for one year
and the appointment orders will be issued taking
into account availability of the vacancies. The
said stipulation would not give an indefeasible

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right to the petitioner to claim appointment
against the future vacancies. The said clause does
not cast an obligation on the respondents to make
appointment from the wait list. The condition at
serial no. 11 is to be construed in respect of

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vacancies advertised and the process of selection vis-a-vis the number of vacancies invited and advertised for such selection. Regulation 29 (A) of Regulations – 1961, relied by the respondents only suggest that the persons who are likely to be absorbed in appropriate vacancies within reasonable period may be informed of their names kept on the wait list for being absorbed in future vacancies. The said Regulation is an enabling Regulation, however, it does not cast an obligation on the respondents to join the persons from the wait list for future vacancies. It only gives a discretion, and enables the concerned officials of the department to extend the wait list where ever considered necessary. It would depend upon the exigency of the circumstance to be considered by the officials of the concerned department. The said Regulation would not give an inviolable right to the wait listed candidate for appointment on future vacancies.

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12.The law as to the right of the persons in the

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wait list to be appointed on future vacancies is

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well settled and need not be a subject matter of
debate.

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13.The Apex Court in a case of Surinder Singh
and others Vs. State of Punjab and another in
Appeal (Civil) 5807 of 1997 observed thus -

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“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 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

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candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.”.

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The Apex Court in case of State of Punjab Vs.

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Raghbir Chand Sharma reported in (2002) 1 SCC
observed thus -

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“With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and, at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently. The circular order dated 22.03.1957, in our view, relates to select panels prepared by the Public Service Commission and not a panel of the nature under consideration. That apart, even as per the circular orders as also the decision relied upon for the first respondent, no claim can be asserted and countenanced for appointment after the expiry of six months. We find no rhyme or reason for such a claim to be enforced before courts, leave alone there being any legally protected right in the first respondent to get appointed to any vacancy arising subsequently, when somebody else was appointed by the process of promotion taking into account his experience and needs as well as administrative exigencies”.

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Further the Apex Court in case of Mukul
Saikia Vs. Sttae of Assam (2009) 1 SCC 386

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observed thus -

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“At the outset it should be noticed that the select list prepared by APSC could be used to fill the notified vacancies and not future vacancies. If the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised, even though APSC had prepared a select list of 64 candidates. The select list got exhausted when all the 27 posts were filled. Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The fact that evidently and admittedly the names of the appellants appeared in the select list dated 17.07.2000 below the persons who have been appointed on merit against the said 27 vacancies, and as such they could not have been appointed in excess of the number of posts advertised as the currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised are filled up, therefore, appointments beyond the umber of posts advertised would amount to filling up future vacancies meant for direct candidates in violation of quota rules. Therefore, the appellants are not entitled to claim any relief for themselves. The question tat remains for consideration is whether there is any ground for challenging the regularisation of the private respondents.”

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14.It is an accepted position on record that the

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petitioner had applied for the post of Executive
Engineer (Transmission) from open competition

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category. The said four posts were filled in and

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all four persons from the select list joined the
posts. Subsequently, due to promotion of one of
the person working as Executive Engineer, the post
became vacant. The vacancy had arisen in future
after the issuance of the advertisement in
question, preparation of the select list and the
persons from select list appointed. It would be
considering the case for future vacancy. The
proposition that may be culled out from the
judgment of the Apex Court referred supra is that
the vacancies cannot be filled in over and above
the number of vacancies advertised. Filling up the
vacancies over the notified vacancies amounts to

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filling up all future vacancies and is not
permissible. The wait list is operative only
under the exigency, that if any selected
candidates do not join, then person from the wait
list may be pushed up and be appointed in the
vacancy so caused or if there is some extreme
exigency as a matter of policy decision pick up

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person in the order of merit from the wait list.
Once the appointments are made against the
advertised posts the select list gets exhausted
and those who are placed below the last appointee
cannot claim appointment against the posts which
subsequently become vacant or available.

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15.The reliance placed by the petitioner in
appointment of Mr. S. S. Rajurkar, from the wait
list persons pursuant to the Advertisement No. 7
of 2016 would not come to the aid of the
petitioner. It has been noted that because of the
urgency said case is considered and such operating
of the wait list is a one time measure and shall
not have bearing on any past and future cases. No
precedence for future cases and reference for past
cases of this case be taken.

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16.The petitioner had participated in the
selection process of the year – 2014, for the post
of Executive Engineer, however, was not selected

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and fresh candidates pursuant to the said

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recruitment process have been appointed. They are
legitimately and validly appointed.

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17.It is held that, the petitioner is not
entitled for appointment pursuant to the selection
process of 2011. The appointment of respondent
nos. 7 to 11 pursuant to the advertisement of 2014
would not be affected.

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18.The writ petition as such is dismissed,
however, with no order as to costs. Rule is
discharged.

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[R. G. AVACHAT, J.] [S. V. GANGAPURWALA, J.]

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marathe

Jitendra Dayaldas Fulwani v. Chairman and Managing Director and Others of M.S.E.T.Co. Ltd.

Case brief

What is this about?

What did the court decide?

Jitendra Dayaldas Fulwani v. Chairman and Managing Director and Others of M.S.E.T.Co. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

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