Waitlisted Candidate Has No Right to Appointment on Resignation of Initially Appointed Candidate: Delhi High Court

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Delhi High Court: Waitlisted Candidate Not Entitled to Post Vacant Due to Resignation of Appointed Candidate

New Delhi, India – In a recent judgment, a Division Bench of the Delhi High Court, comprising Justices C. Hari Shankar and Anoop Kumar Mendiratta, upheld that a waitlisted candidate does not have an indefeasible right to appointment to a post that becomes vacant due to the resignation of a previously selected and appointed candidate. The court dismissed an appeal filed by Dr. Shahshi Bhushan , a Scheduled Caste (SC) candidate, who sought appointment as an Assistant Professor at Kalindi College , University of Delhi, against a vacancy arising from the resignation of an initially selected candidate.

Background: The Case Before the Court

Dr. Bhushan , who had served as an ad hoc Assistant Professor at Kalindi College , applied for a permanent position as Assistant Professor in Geography when the college advertised vacancies in December 2022, including two reserved for SC candidates. While he was placed first on the waiting list after interviews, Ms. Usha Rani and Mr. Jitendra Rishideo were selected and appointed. Subsequently, Ms. Rani resigned after joining, creating a vacancy. Dr. Bhushan claimed his right to be appointed to this vacancy based on his position on the waitlist.

Arguments of the Appellant: Relying on DOPT Memorandum

Dr. Bhushan argued that the Office Memorandum (OM) dated June 13, 2000, issued by the Department of Personnel & Training (DOPT) of the Central Government, should apply to the University of Delhi. This OM, he contended, allows for filling vacancies from a reserve panel when a selected candidate resigns within one year of joining. He further argued that Ordinance XI of the University, which states "All other Central Government rules on probation and confirmation shall be applicable mutatis mutandis," extended the applicability of the DOPT OM to the University.

Dr. Bhushan 's counsel argued that the University's circular issued on April 3, 2024, which stated that waitlisted candidates cannot be appointed to vacancies arising from resignations, was issued maliciously to prejudice his case and could not be applied retrospectively to the selection process he participated in. He distinguished the Supreme Court's judgment in Sudesh Kumar Goyal v State of Haryana , arguing it was not applicable as it didn't involve a waitlist and pertained to different service rules.

University's Stand: Citing Supreme Court and University Rules

The University of Delhi and Kalindi College countered that the DOPT OM was not applicable to them, as the University operates under its own Statutes, Rules, Ordinances, and Circulars. They emphasized that the DOPT OM pertains to selections by agencies like UPSC and SSC, not University appointments. They cited the Supreme Court's ruling in Sudesh Kumar Goyal , along with other precedents like Madan Lal v State of Jammu and Kashmir and State of Punjab v Raghbir Chand Sharma , to assert that a waiting list perishes once initial appointments are made, and a resignation creates a fresh vacancy requiring a fresh advertisement. The University's circular of April 3, 2024, was based on the interpretation of Sudesh Kumar Goyal and clarified this position.

Court's Analysis: DOPT OM Not Applicable , Supreme Court Precedents Prevail

The High Court concurred with the University's position, stating that Dr. Bhushan failed to demonstrate any rule or ordinance making the DOPT OM applicable to the University. The court clarified that Ordinance XI deals with probation and confirmation and does not extend to the DOPT OM concerning vacancy filling from reserve panels. The court emphasized that the University explicitly disowned the applicability of the DOPT OM.

Rejecting the distinction attempted by Dr. Bhushan ’s counsel, the court found Sudesh Kumar Goyal directly applicable. The bench highlighted that the Supreme Court in Sudesh Kumar Goyal clearly held that a resignation after joining creates a "fresh vacancy" necessitating a new selection process. The court quoted paragraph 19.4 of the judgment:

> "…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 further reinforced this legal position by citing Madan Lal v State of Jammu and Kashmir and State of Punjab v Raghbir Chand Sharma , emphasizing the principle that a waitlist's utility expires once initial appointments are made. They quoted paragraph 21.2 from Raghbir Chand Sharma :

> "…the panel ceased to exist and it has outlived its utility and, at any rate, no one else in the panel could legitimately contend that he should have been offered appointment either in the vacancy arising on account of a subsequent resignation of a person appointed from the panel."

Judgment and Implications: No Right to Appointment from Waitlist After Resignation

Ultimately, the Delhi High Court concluded that Dr. Bhushan had no legal right to appointment based on his waitlist position after Ms. Rani 's resignation. The court upheld the Single Judge's decision and dismissed the appeal, affirming that the vacancy created by Ms. Rani 's resignation constitutes a fresh vacancy that must be filled through a new advertisement and selection process, not from the existing waitlist. This judgment clarifies the legal position regarding the rights of waitlisted candidates in similar appointment scenarios, particularly within the University of Delhi and potentially other institutions following similar appointment procedures.