IMPORTANT POINT
A vacancy caused by the termination of an employee must be filled through a new selection process, not from an existing select list.

ORDER :

SANJAY K. AGRAWAL, J.

1. In this writ petition, the petitioner is seeking direction to the respondent authorities to consider the case of the petitioner for appointment to the post of Peon from the waiting/select list.

2. The facts of the case is that the advertisement for appointment to the post of Peon was issued on 24.08.2013 (Annexure P/1) by the Executive Engineer, Public Works Department, Mungeli, pursuant to which, the petitioner and respondent No.3 both were called for interview for the said post. Subsequently, vide order dated 12.06.2014 (Annexure P/3), respondent No.3 was selected for the aforesaid post, which he joined on the same day. However, the services of respondent No.3 was terminated vide order dated 29.11.2014 (Annexure P/8), on the ground that he was having more than two living children and the third child was born after 26.01.2001. The case of the petitioner is that since the aforesaid post has fallen vacant following the termination of the respondent No.3, therefore, he may be appointed to the said post. The return has been filed opposing the writ petition.

3. Ms. Diksha Gauraha, learned counsel for the petitioner would submit that since the subject post has fallen vacant within one year from the date of declaration of the select list on 12.06.2014 and, also, the earlier writ petition in this regard was filed on 19.08.2014 and this second petition has been filed on 02.12.2015, therefore, the petitioner is entitled for appointment to the said post from the select list.

4. Learned Counsel for the State submits that since the process of appointment has already been completed and the vacancy has arisen on account of termination of respondent No.4 on 29.11.2014 (Annexure P/8), therefore, the post cannot be said to be fallen vacant as it gives rise to a fresh vacancy, which is to be filled up in accordance with law and by following a fresh selection process. In this regard, he has relied upon the decision of the Supreme Court in the matter of Sudesh Kumar Goyal v. State of Haryana & Ors, (2023) 10 SCC 54.

5. I have heard learned counsel for the parties, considered their rival submissions made herein above and gone through the materials available on record with utmost circumspection.

6. In the case at hand, admittedly, respondent No.3 was appointed to the post of Peon in the concerned department vide order dated 12.06.2014 (Annexure P/3), however, he was later terminated vide order dated 29.11.2014 (Annexure P/8) on the ground that he was having more than two living children and the third child was born after 26.01.2001.

7. In this regard, the decision of the Supreme Court in the matter of Sudesh Kumar Goyal (supra) may be noticed, wherein, it has clearly been held in paragraph 19 as under:-

“19. This takes us to the second argument that the appellant could have been easily adjusted against the vacancy caused due to resignation of one of the selected candidates. The argument per se is bereft of merit inasmuch as all the vacancies notified stood filled up initially. However, if one of the selected candidates joins and then resigns, it gives rise to a fresh vacancy which could not have been filled up without issuing a proper advertisement and following the fresh selection process. The Division Bench has rightly dealt with the above contention in the light of the precedent of the various decisions of this Court and we do not feel that any error has been committed in this context.”

8. Reverting to the facts of the case, since respondent No.3 had already joined the said post and, thereafter, he was terminated from the said post, it has given rise to a fresh vacancy, which is to be filled up in accordance with law and it could not have been filled up on the basis of earlier select list. Furthermore, since the subject recruitment has already been concluded after the appointment of respondent No.3, as such, I do not find any merit in this writ petition, it deserves to be and is accordingly, dismissed, leaving the parties