REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2239  OF 2009 (Arising out of SLP (C) No.7676 of 2006)

BSNL & Ors. … Appellants

Versus

Abhishek Shukla & Anr. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. This appeal is directed against a judgment and order dated 1.02.2005

passed  by  a  Division  Bench  of  the  Allahabad  High  Court  whereby  and

whereunder an order dated 1.12.2004 passed by a learned Single Judge of

the said Court was modified as also the order dated 3.1.2006 passed by a

learned  Single  Judge  of  the  said  High  Court  dismissing  the  review

application filed by the appellant herein.

3. The basic fact of the matter is not in dispute.  An advertisement was

issued by the Chief General Manager, U.P. (W), Telecom Circle, Dehradun

for  recruitment  to  the  post  of  Telecom  Technical  Assistants  (General

Central Services) Group ‘C’ non-gazetted, non-ministerial in the office of

Telecom  District  Manager,  Pilibhit.   In  the  said  advertisement,  it  was

specified that there exists five vacancies for the post of General Category

candidates, two reserved for the candidates belonging to Other Backward

Classes and one for the Scheduled Caste candidates.   

Indisputably,  pursuant  to  the  said  advertisement  a large number of

applications  were  filed.   A  Selection  Committee  was  constituted  which

prepared a select list.  It is also beyond any doubt or dispute that names of

the appellants herein were placed in the waitlist.

Results were published on 8.8.2002 which is in the following terms :

“Sl. No.

Roll No. Name Date of Birth

Caste Total Roster

1 14-035 Alok Kumar Rathor 05.07.78 OBC 724 Gen. 2 14-063 Ravi Kumar 16.07.74 SC 659 Gen. 3 14-008 Pradeep Kumar 05.01.76 OBC 650 Gen. 4 14-059 Sanjay Kumar 01.01.78 OBC 645 OBC 5 14-004 Chandra Pal Singh 12.05.78 SC 611 SC 6 14-129 Amit Vaish 16.07.74 OC 611 Gen. 7 14-058 Kamlesh Kumar Maurya 02.07.80 OBC 608 Gen. 8 14-112 Prem Pal 02.01.79 OBC 600 OBC 9 14-085 Abhisek Shukla 01.08.79 OC 596 Gen.

10 14-151 Jitendra Pal Gangwar 21.04.79 OBC 589 SC”

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It  is  furthermore  not  in  dispute  that  Shri  Pradeep  Kumar and  Shri

Kamlesh Kumar Maurya, whose names appear at Serial No.3 and 7 at the

said select list did not join their posts.  First respondent belongs to General

Category candidate  whereas  the  second respondent  belongs to  Scheduled

Castes category candidate.   

The selected  candidates  were  sent  for  training  for  a period  of  two

months.   They  had,  however,  been  given  placement  orders  only  on

29.8.2003.  Having come to learn that two of the select list candidates had

not  joined,  appellants  made  representations  on  or  about  12.9.2003  and

20.9.2003 respectively.  The said representations  were,  however,  rejected

only on the premise that there was no provision in the Recruitment Rules for

maintaining such a waitlist.   

4. Appellants  filed  a  writ  petition  before  the  Allahabad  High  Court

praying, inter alia, for the following reliefs :

“Issue a writ,  order  or direction in the  nature  of certiorari  quashing  the  impugned  letter  dated 24.11.2003,  issued  by  the  Respondents. (Annexure-7)

Issue  a  writ,  order  or  direction  in  the  nature  of mandamus  directing  the  Respondents  to  issue appointment letters to the Petitioners, in the light of the result declared by the respondents.”

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5. In the affidavit filed on behalf of the appellant herein and affirmed by

one Shri B.S. Bhandari, it was averred :

“That in reply to the contents of para 10, 11 and 12 of  the  writ  petition,  it  is  stated  that  there  is  no provision of waiting list by the department.”

6. By reason of a judgment and order dated 1.12.2004, a learned Single

Judge of the High Court noticed that most of the averments made in the writ

petition had not  been traversed and,  thus,  the  same would be deemed to

have been admitted.  The writ petition was, therefore, allowed, directing :

“In  the  result,  the  writ  petition  stands  allowed. The order  dated 26.9.2003/24.11.2003 passed on the  representation  of  the  petitioner,  is  quashed. The  petitioners  would  be  entitled  to  be  given appointment  on  the  post  of  Telecom  Technical Assistants  under  Telecom  District  Manager, Pilibhit  in  pursuance  to  the  select  list  dated 05.08.2002.  There will be no order as to cost.”

7. An intra court appeal was preferred thereagainst and by reason of the

impugned judgment, the order of the learned Single Judge was modified to

the following effect :

“The  learned  Single  Judge  has  allowed  the  writ petition vide judgment and order dated 01.12.2004 issuing  a  direction  to  the  present  appellants  to appoint the respondents No.1 and 2 on the post of Telecom  Technical  Assistants  under  Telecom

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District Manager, Pilibhit, as their names appeared in  the  waiting  list  at  serial  Nos.1  and 2,  as  two persons  from  the  select  list  did  not  join.   The learned  Single  Judge  has  held  that  the  present appellants  did  not  file  the  counter  affidavit  in  a proper  manner  and  the  denial  was  not  in accordance  with  the  mandate  of  the  Order  VIII Rule  5  of  the  Code  of  Civil  Procedure.   The averments  made  in  the  petition  were  thereafter found to be correct.   No interference is  required with the judgment and order of the learned Judge except to the extent that the learned Single Judge should  not  have  issued  a  direction  to  the appellants to appoint the petitioners straightaway. In our opinion the present appellants should have been  directed  to  consider  the  candidates  whose names appeared  in  the  waiting  list  against  those vacancies.  

In view of the above, the impugned judgment and order dated 01.12.2004 is  modified to the extent that the present appellants shall consider to fill up the  two  vacancies  which  remained  unfilled because  two  selected  persons  did  not  join  by offering the appointment letters to the respondents who are in the waiting list  at  serial  Nos.1 and 2 within a period of six weeks from today.”

8. As indicated  hereinbefore,  by an  order  dated  3.1.2006,  the  review

application filed by the appellants has been dismissed.

9. Mr.  K.C.  Kaushik,  learned  counsel  appearing  on  behalf  of  the

appellant, would contend :

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i) There being no provision in the statutory rules for preparing a select

list  with  waitlist  candidates,  the  impugned  judgment  cannot  be

sustained.

ii) The life  of  the  panel  being one year,  it  was  impermissible  for  the

High Court to direct the appellant to consider the candidatures of the

appellants.

10. Mr.  Navin  Chawla,  learned  counsel  appearing  on  behalf  of  the

respondent, on the other hand, would support the impugned judgment.

11. In their  Writ  Petition,  the respondents  had categorically stated that

only on 29.8.2003, appellant had cleared the names of six persons and were

permitted  to  join.   Paragraph  4  of  the  counter  affidavit,  traversing  the

averments made in paragraph 7 of the writ petition, reads as under :

“That in reply to the contents of para 7 of the writ petition it is stated that only eight candidates were selected in merit list they have appointed.”

In paragraph 13 of their writ petition, the respondents averred :

“That in this  regard,  appointments made at  other places,  waitlisted  persons  have  been  given appointment.  One of such place, i.e., meerut, one Shri Parvesh Malhotra bearing Roll No.1880 and Shri  Nirmal  Singh  bearing  Roll  No.1575,  who were  not  in  the  first  20,  but  subsequently  they have been given appointment  being  on the Wait

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Listed  Panel.   A  copy of  the  aforesaid  result  is annexed as Annexure-9 to this writ petiton.”

The  said  averments  have  been  traversed  in  paragraph  8  of  the

affidavit, stating :

“That contents of para 13 of the writ petition are not correct as stated hence denied.  It is stated that there is no waiting list in Pilibhit.”

12. There cannot, therefore, be any doubt whatsoever that the allegations

contained  in  the  writ  petition  that  in  all  other  districts  the  Selection

Committee had prepared ‘waitlist’ and a large number of appointments had

been made therefrom were not specifically been denied   

13. Appellant  is  a  ‘State’  within  the  meaning  of  Article  12  of  the

Constitution  of  India.   It  must  have its  law department.   It  is,  therefore,

difficult to conceive that the concerned officers of the department could not

place the factual and legal position before the Court as has been contended

before us.

14. Mr.  Kaushik  furthermore  contended  that  one  of  the  vacancies  had

been earmarked for a handicapped candidate and, thus, it is not possible to

comply with the order of the High Court.  Such a decision must have been

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taken only in the year 2003.  Such appointment of a handicapped person,

indisputably, is de’ hors the advertisement.

15. We, therefore, do not find any error in the impugned judgments.   

We are, however, not oblivious of the fact that ordinarily the life of

such a panel  is  one year as  has  been observed by this  Court  in  Girdhar

Kumar Dadhich & Anr. v. State of Rajasthan & Anr. [2009 (2) SCALE 98].

However, the select list was approved by the appellant only in August 2003

and the respondents having made representations within one year therefrom

in our opinion, the said requirement also stands satisfied in the instant case.

Moreover, such a question had not ever been raised before the courts below.

Had such a question been raised, the respondent could have dealt with the

same.   {See  Amlan  Jyoti  Borooah v.  State  of  Assam & Ors. [2009  (2)

SCALE 56]}.

16. For  the  reasons  aforementioned,  we  do  not  find  any merit  in  this

appeal.   It  is  dismissed  accordingly.   As  the  appellants  have  already

deposited  a  sum  of  Rs.20,000/-  pursuant  to  this  Court’s  order  dated

24.4.2006, we do not make any order as to costs.

……………………………….J. [S.B. Sinha]

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..…………………………..…J. [Dr. Mukundakam Sharma]

New Delhi; April 8, 2009

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