Candidate Figuring Below Wait List Can’t Lay Claim For Selection: HC

SRINAGAR – Can a candidate figuring in merit position below the wait listed candidate lay a claim for selection and appointment against the advertised post if both wait listed candidate does not join against the post when appointment is offered to him on account of non-joining of the selected candidate?

Responding the query in negative, a bench of Justice Ali Mohammad Magrey clarified it by giving an example.

Suppose a certain number of eligible candidates, say 10, respond to an advertisement notice notifying a single post and that the procedure governing the selection process provides that these candidates be put to written test for short-listing for purposes of oral test / viva voice / interview.

Also suppose, the court said, the procedure also provides that five of the meritorious candidates in the written test out of the 10 candidates be called for interview. “So, five candidates out of the ten, who do not make the grade to entitle them to be called for interview, are eliminated at this stage in fulfilment of their right to consideration guaranteed under the Constitution,” the court said.

Now, these five candidates cannot claim any right to be included in the further process required to be undertaken by the Board to complete the process of selection, the court said.

“Assuming a situation that one of the five candidates, who make the grade and are called for oral test, by any reason, does not, or is not likely to, appear for the oral test, the eliminated candidate possessing the highest marks in the written test in the eliminated group, cannot claim his substitution for the missed out candidate to be called for interview, for, his right to consideration stands fulfilled at the stage of the written test itself.”

 Now, out of the candidates who are called for and actually appear at the interview, the Board is required to select a single candidate for the single post advertised, be it on the basis of the performance at the interview alone or on the basis of the aggregate merit obtained in the written test and interview, the court said. “Obviously, it has to be one amongst the candidates who appear at the interview who does well at such oral test or who secures an aggregate merit higher than the rest. Once the select list of the single candidate against the advertised post is made, the others in the group are eliminated for the further process of making recommendation to the Government and such elimination, again, takes place by reason of accord of the right of consideration to them.”

 Now, a situation can be conceived of that the candidate, who is selected, does not turn up to accept the offer of appointment when it is made to him. “In such an eventuality, the whole exercise undertaken in the selection process would be rendered futile.”

 To obviate such a situation, the court said, rules provide for a candidate to be kept in waiting and he has to be the one having obtained the merit just below and immediately after the selected candidate amongst the group of candidates who have been called for and have appeared at the interview. “Factually, he is not selected, but remains in waiting, and if the selected candidate drops out, the candidate in the waiting is appointed in his capacity not being a selected candidate, but in his capacity as being the candidate in the waiting, i.e., waiting list.” In the event such a candidate, for any reason, also would not accept the offer of appointment, the matter would end there and no other candidate can claim to be substituted for the wait listed candidate, unless, of course, the Rules expressly provide so, the court added.    

The court answered the query framed by it in a petition filed by Liyakat Hussain Baniya who had offered his candidature for selection against the post of Accounts Assistant (ST category), District Cadre Shopian, advertised by the Jammu and Kashmir Services Selection Board of its advertisement on 30 December 2014, the intending department being the Finance Department. The Board, at the culmination of the selection process, on 31 August 2016 forwarded the selection list containing the name of a lone candidate alongwith a waiting list, also containing the name of a lone candidate, to the Department. Consequent to it, the Finance Department, on 06 December 2016, accorded sanction to the deputation of the selected candidate to the Accounts Training School where he was required to report within 21 days of the issue of the order.

While the Department had yet to act on the selection list so forwarded to it by the Board, Liyakat made a representation addressed to the Directorate General, Accounts and Treasuries, bringing it to his notice that the selected candidate and the candidate figuring in the waiting list had tendered affidavits stating that they did not intend to join, and requesting him to direct the concerned authorities to process his case for selection and appointment in accordance with norms.

Later Deputy Director (Central), Accounts & Treasuries, Finance Department on 02 June 2017, wrote to the Secretary of the Board that neither the selected candidate nor the candidate recommended in waiting list under ST category had joined against the post, and requested him to recommend another eligible candidate from the category in order of merit so that the resultant vacancy was filled up. In response thereto, the Board through its Administrative Officer communicated to the Principal Secretary to Government, Finance Department, the particulars of the candidate falling next in order of merit and recommended him for the post. While doing so, it was specifically mentioned in the supplementary waiting list that the panel was recommended purely on the request made by Deputy Director (Central), Accounts & Treasuries, Finance Department.

It has been thereafter that Liyakay, who was the candidate named in the supplementary waiting list, filed the present petition on 04 October 2017 praying therein that the  Commissioner Secretary to Government, Finance Department, and the Director General, Accounts & Treasuries, Finance Department, be directed to act upon the recommendation made by Board in his favour and appoint him on the post of Accounts Assistant in District Cadre, Shopian, under the ST category, with further direction to them not to re-advertise the post in question. His case is that since he figured in the merit list after the wait listed candidate, who did not join against the post, and was recommended by the Board in terms of the supplementary waiting list, a right has accrued to him for being appointed against the post, but the respondents were unjustifiably denying him such right. It is averred that government has not shown any legal infirmity in issuing appointment order in favour of Liyakat.

“A candidate in a selection process securing a merit position below the wait listed candidate cannot lay any claim of selection and appointment against the advertised post in the event the wait listed candidate does not join against the post when appointment is offered to him on account of non-joining of the selected candidate,” the court said after hearing both the parties.

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