Candidates in a waiting or reserve list are not entitled to appointment if the notified vacancies were filled during the main selection process and the candidates' marks are lower than the cut-off of the last selected candidate.

ORDER :

Pradeep Mittal, J.

These Miscellaneous petitions are filed under Article 227 of the Constitution of India by the writ petitioners challenging the order dated 17.05.2023 passed in O.A. No. 200/695/2019 whereby the learned Tribunal has directed the petitioners to consider the case of respondents for grant of appointment though the respondents are not entitled for the same. As these petitions involve an identical issue, they are heard and decided by this common order.

2. The petitioners issued Employment Notice No. 02/2012 for appointment to Group ‘D’ posts. The respondent in M.P. No. 4869 of 2023 applied under the OBC category and was issued an Admit Card to appear in the written examination held on 17.11.2013. After qualifying in the written examination, he was called for the Physical Efficiency Test and document verification. The respondent secured 60.28% normalized marks and was placed at Rank 2992 under the OBC category. The last selected candidate under the OBC category secured 60.37% normalized marks with Rank 2953. As the respondent obtained lesser marks than the last selected candidate, he was not offered appointment. All notified posts under Employment Notice No. 02/2012 were filled, and no vacancy remained unfilled. There was no replacement panel. Thereafter, the respondent filed Original Application No. 200/695/2019 before the learned Tribunal seeking appointment, along with an application for condonation of delay, as the Original Application was time-barred. The petitioners filed their replies; however, the learned Tribunal did not decide the issue of limitation. By order dated 17.05.2023, the learned Tribunal directed the petitioners to consider the respondent’s claim for appointment pursuant to Notification No. 05/2010 dated 15.10.2010, despite the fact that the respondent had never participated in the said notification. Being aggrieved by the said order dated 17.05.2023, which is illegal, arbitrary, and unreasonable, the petitioners have filed the present petition. the impugned order dated 17.05.2023 (Annexure P/1) is illegal, arbitrary, and contrary to law, as it has been passed without properly considering the relevant facts and applicable rules.

3. It is submitted by the learned counsel for the petitioners/Union of India that the respondent in M.P. No. 4872 of 2023 was not considered for appointment as he has secured 42.36% marks (normalized) under ST category and have got rank 8724. The last candidate of ST category who got success is Shri Ram Naresh Meena having rank 8404 and secured 42.89 marks (normalized). Thus the respondent has secured less marks in comparison to last selected candidates under ST category. It is further submitted that in the employment notification No. 05/2010, 216 posts were advertised for ST category and 216 candidates were put in the panel. Since the respondent is way behind in the merit list from the last selected candidate therefore, appointment was not offered to him and the name of the respondent was placed in the reserve panel.

4. It is submitted that the learned Tribunal failed to decide the preliminary objection regarding limitation, even though the Original Application was filed after an inordinate delay and was clearly barred by limitation, the cause of action having arisen on 30.06.2014 while the application was filed only on 06.08.2019.

5. That the Tribunal further erred in relying upon the judgment in Dinesh Kumar Kashyap and Others vs. South East Central Railway and Others reported in (2019) 12 SCC 798, which was a judgment in personam and not applicable to the present respondents. The Tribunal also wrongly directed consideration of the respondents' case (M.P.No. 4869 of 2023) under Notification No. 05/2010, despite the respondent having applied under Notification No. 02/2012, and ignored the fact that the respondents secured fewer marks than the last selected OBC and ST category candidate and were therefore not entitled to selection.

6. It is further submitted that ad