Research › Search › Judgment

J&K High Court · body

2002 DIGILAW 79 (JK)

Meenakshi Bandral v. State Of J. &K.

2002-03-27

T.S.DOABIA

body2002
1. Equality clause is invoked by the petitioners. As a matter of fact, the central tenet of all social and religious thoughts is equality of all men. This concept, means only that men may be equal in Gods eyes; they can never be equal in the eyes of other men. When we talk of equality, we forget that differences start from the moment a human being is conceived. The gap widens between men and women as they happen to live in different families; go to different schools; are taught by different teacher; discover of fail to discover individual talents and are given or not given the resources to develop. This continues to happen throughout our lives. It is on this basis, the winners and losers are determined. The facts in these two writ petitions do disclose that having won the race as tail enders the petitioners were declared losers. They approached this Court. 2. The petitioners in these petitions seek a writ of mandamus to the effect that respondent authorities should consider the claims of the petitioners for appointment as Lecturer in Higher Education in the discipline of Zoology. The facts as pleaded be noticed: 3. The Jammu and Kashmir Public Service Commission invited applications for the post of Lecturer in different disciplines in the department of Higher Education. These petitions pertain to the discipline of Zoology. In para 2 of the writ petition bearing SWP No. 1890/01, it is submitted that nine vacancies were advertised in the General category. Three vacancies were meant for Residents of Backward Area and two were meant for Scheduled Caste category. In all 14 vacancies were to be filled. According to the petitioners, they applied for the post. As per them, yet another notification came to be issued on 3lst Dec. 97. The number of posts which came to be advertised vide this notification were 20 in the General category, 6 in the category of Residents of Backward Area, 3 in Scheduled Caste category, 2 in Scheduled Tribe and 1 in the category of actual Line of Control. In all 32 vacancies were notified in the discipline of Zoology. Copies of these two notifications have been placed on record as Annexures A and B. In the latter notification issued by the respondents, it was mentioned that those candidates who have already applied need not apply again. In all 32 vacancies were notified in the discipline of Zoology. Copies of these two notifications have been placed on record as Annexures A and B. In the latter notification issued by the respondents, it was mentioned that those candidates who have already applied need not apply again. The petitioner No. 2 in writ petition 1890/01, submits that as she had improved her qualification, therefore, she submitted a fresh application seeking appointment on the basis of her improved qualification. 4. So far as the petitioner in writ petition 2077/01 is concerned, it is submitted that he applied for the post in question in Scheduled caste category. 5. The petitioners submit that they underwent the screening test. The said test was not held in the case of petitioner No. 2 in writ petition 1890/01. This was because of her higher qualification, and therefore, she was not supposed to appear in the screening test. A select list was prepared. Copy of this is annexure C. The names of the petitioners No. 1 and 2 in writ petition 1890/01 figure in the waiting list of open category at SI. No. 16 and 17. So far the petitioner inwrit petition 2077/01 is concerned, his name figures at serial No. 3 in the waiting list in Scheduled Caste category. According to the petitioners, the vacancies became available. The waiting list was operated upon The petitioners who could have been appointed against the available vacancies on the basis of the waiting list were not appointed whereas, this waiting list was operated in the case of others. For this, reliance is being placed on Annexures E and F. It is submitted that respondents No. 4 to 12 came to the appointed by the Government against anticipated vacancies. This was vide Annexure E. Respondents 13 to 15 who were also in the waiting list came to be appointed in the Open category. This was again by operating the waiting list. It is this list which is marked as Annexure F. It is further submitted that out of the list of the candidates mentioned in Annexure E and F, respondent No. 14 did not join. For this reliance is being placed on Annexure G. It is submitted that the claims of the petitioners were being considered and they were given an assurance that they would be appointed against the waiting list. For this reliance is being placed on Annexure G. It is submitted that the claims of the petitioners were being considered and they were given an assurance that they would be appointed against the waiting list. As no concrete steps were being taken and as the validity of the waiting list was likely to expire, the petitioners have approached this court. 6. The facts in writ petition 2077/01, some of which stand noticed above are similar. The prayer made is also similar. On 6th Sept. 2001, following interim order was passed in SWP 2077/01 "Issues notice. Notice in CMP also. The case of the petitioner is that he is on the top of waiting list. If the waiting list is subsisting and the petitioner is on the top of it and some posts fall vacant, the petitioner may also be considered alongwith other eligible candidates..." 7. Thus, the case of the petitioners is that their names figured in the waiting list and this list is valid for a period of one year, therefore, the waiting list should be operated upon, 8. The stand taken by respondent authorities is that 32 posts in the subject of Zoology were referred to the Public Service Commission. This was in the year 1997-98. It is further submitted that the question as to whether the waiting list as prepared by the Public Service Commission is to be operated or not was considered by the State Government. It is submitted that this consideration was done. It is submitted that this was done in pursuance of some observations made by a Division Bench of this Court in SWP No. 1259/99, decided on 1st Jan. 2000. The above case was with regard to the discipline of English. It was concluded that the waiting list in the aforesaid subject should be operated upon. It is further submitted that the Govt. was of the view that there is no justification to take a different view with regard to other disciplines, it is however submitted that the issue regarding making appointment for the post of Lecturer in Zoology out of the waiting list came to be referred to the Law Department in Aug. 2001. A view was expressed that the appointment of the candidates against any future vacancies would not be in consonance with the view expressed by the Supreme Court, and therefore, a different decision has been taken. 2001. A view was expressed that the appointment of the candidates against any future vacancies would not be in consonance with the view expressed by the Supreme Court, and therefore, a different decision has been taken. It is however, submitted that four vacancies were available in the subject. The number of candidates in the waiting list was also four. However, expressed by the Law Department. Thus the stand taken by the respondent-State is: 9. i/ That the Public Service Commission did prepare a waiting list, which is valid for a period of one year: ii/ That the question as to whether the waiting list is to be operated upon or not came to be considered by the Government. A decision was taken to operate this waiting list so far as the discipline of English is concerned. At the same time, it was felt that there appears to be no justifiable reason to not to give effect to the waiting list in other disciplines also; iii/ That so far as the discipline of Zoology is concerned, opinion of the Law Department was sought on some other matter but the Law Department also gave an opinion that the waiting list cannot be operated upon. 10. It be seen that there is no dispute that under the Rules, a waiting list can be prepared and this is valid for period of one year. If this be the position, then this waiting list can be operated upon and appointments can be made. Such is the view expressed by the Supreme Court of India in the case of Virender S. Hooda and others v. State of Haryana and another, (1993)3 SCC 696. In the aforementioned case, administrative orders existed which permitted appointments to be made against the vacancies which were likely to arise in 6 months time. The High Court of Punjab and Haryana was of the view that this administrative order cannot be taken note of. The Supreme Court of India, however, took a different view. What was said by the Supreme Court is being reproduced below: "The view taken by the High Court that the administrative instructions cannot be enforced by the appellants and that vacancies became available after the initiation of the process of recruitment would be looking at the matter from a narrow and wrong angle. What was said by the Supreme Court is being reproduced below: "The view taken by the High Court that the administrative instructions cannot be enforced by the appellants and that vacancies became available after the initiation of the process of recruitment would be looking at the matter from a narrow and wrong angle. When a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same." 11. The aforementioned decision comes to the rescue of the petitioners. Independently of the above, the respondent State has to be consistent. It having taken a decision vis-a-vis discipline of English and other disciplines that the waiting list can be operated upon, should have given the relief to the petitioners of its own. They should not have forced the petitioners to come to this Court. The State, as indicated above, has to be consistent. For this reason and in view of the decision given by the Supreme Court in Virender S. Hoods case *(supra), the petitioners are well within their right to submit that they should be appointed by operating the waiting list. 12. The further question as to whether, the select list, the validity whereof has expired during the pendency of the litigation, would confer any right or not be also examined. This aspect of the matter has been considered by the Supreme Court in the case of State of U.P. v Ram Swarup Saroj, AIR 2000 SC 1097. In para 10 of the judgment, following observations have been made by the Supreme Court: - "...Merely because a period of one year has elapsed during the pendency of litigation, we cannot decline to grant the relief to which the respondent has been found entitled to by the High Court. 13. As in the above case, the respondent writ petitioner had approached the Court before the expiry of period of one year, the relief was granted to him. The position in this case is similar. Thus, looking from any point of view, the stand taken by the official respondents cannot be sustained. These petitions as such are allowed. 13. As in the above case, the respondent writ petitioner had approached the Court before the expiry of period of one year, the relief was granted to him. The position in this case is similar. Thus, looking from any point of view, the stand taken by the official respondents cannot be sustained. These petitions as such are allowed. The respondent authorities are directed to consider the claims of the petitioners for appointment as has been done in the case of others. Let necessary orders in this regard be passed within a period of one month from the date, a copy of this order is made available to the respondents by the petitioners. The petitioner would be entitled to all consequential benefits minus monetary benefits. 14. Disposed of accordingly.