A waitlisted candidate does not have an indefeasible right to appointment; vacancies created by resignation require a fresh selection process.

TUSHAR RAO GEDELA, J. (ORAL) [ The proceeding has been conducted through Hybrid mode ]

1. This is a writ petition under Article 226 of the Constitution of India, 1950, inter alia, seeking the following reliefs :-

• “a) Issue a writ of mandamus or any other appropriate writ, order, or direction directing the Respondents to appoint the Petitioner to the vacant position of Assistant Professor in the Department of Geography at the Respondent College.

• b) Respondent University to appoint the petitioner to the post of Assistant Professor (Geography) before the expiry of the waitlist panel.

• c) To issue a writ of Mandamus or any other writ, order, or directions directing the Respondent University to keep the post open during the pendency of the present writ petition.”

2. Mr. Chimni, learned counsel appearing for the petitioner submits that admittedly the petitioner had participated in the recruitment process for the post of Assistant Professor of the Department of Geography, Kalindi College, University of Delhi. He submits that after selection the petitioner was the first candidate in the waitlist. He submits that one Ms. Usha Rani who was at Sl. No.1 in the list of selected candidates, was offered the appointment and had consequently joined the college as Assistant Professor in the Geography Department. Subsequently, the said Ms. Usha Rani had resigned from the respondent/college and proceeded to join another college at the same post. He submits that the post of Assistant Professor allocated to the Scheduled Caste fell vacant on such resignation of Ms. Usha Rani. He submits that the petitioner being the waitlist candidate no.1 has a right to be offered appointment to the said vacant post. That having not been done, the present writ petition has been filed.

3. Learned counsel draws attention of this Court to the OM dated 13.06.2000 to submit that the respondent is under an obligation to operate the reserve panel/waitlisted panels prepared on the basis of the selection, particularly where the incumbent who had joined, resigns leaving the post vacant or dies within six months of such joining. The respondent ought to fill up the said vacant post by calling for candidates from the waitlist. In the present case Mr. Chimni submits that the same has been done violating the said OM.

4. Per contra Mr. Mathur, learned counsel appearing for the respondent no.2 college hands out the communication dated 03.04.2024 issued by the University of Delhi to all the Principals/Directors of the colleges and institutions falling under the University of Delhi.

5. By referring to para 4 of the said communication, he submits that the University had clarified that in case of an offer to the appointment to the post of Assistant Professor in the waitlisted candidate category created on resignation of the candidate who joined to the post and later resigned, it would mandate issuance of fresh advertisement for such vacant post following due process and procedures envisaged under the ordinance of the University. He also draws attention to para 5 of the said communication to submit that the University had issued such communication based on the judgment of the Supreme Court in Sudesh Kumar Goyal vs. State of Haryana and Others reported in (2023) 10 SCC 54 . He also reads out para 6 of the said communication to submit that the petitioner would not be eligible for consideration keeping in view the clause (i) of the said para 6 which is applicable in cases of resignation of previously selected candidate tenders resignation. He submits that in the present case, the petitioner seeks offer of appointment to the post which has become vacant on the resignation of the previously selected candidate. As such, according to Mr. Mathur, the petitioner has no cause of action.

6. This Court has considered the arguments of the learned counsel for the petitioner as also the respondent.

7. For the purposes of appreciating the contentions of Mr. Mathur as a