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2003 DIGILAW 252 (JK)

State Of J. &K. v. Ved Singh

2003-08-25

R.C.GANDHI, Y.P.NARGOTRA

body2003
R.C. Gandhi, J.(ORAL) This Letters Patent Appeal has been preferred by the appellants including Service Selection Recruitment Board (hereinafter referred to as SSRB) against the judgement dated 30.04.2001, whereby writ petition bearing SWP No. 304/2000 has been allowed directing the respondent-State to operate the waiting list wherein the respondent Ved Singh appears at S. No. 2 of the waiting list. 2. Appellants have challenged the legality of the order under appeal on the ground that appellant No. 3, SSRB has written a letter dated 23.03.1999 to appellant No. 1 conveying therein, not to operate the waiting list furnished by the Board, till further communication from the Board. 3. Appellant- SSRB advertised various posts including the posts of Jr. Engineer grade-II vide Advertisement Notification No. 3 of 1997 dated 29.04.1997 Petitioner/respondent herein, who belongs to RBA category, was subjected to the process of selection alongwith others. Board selected the candidates against all the categories including 36 candidate against Resident of Backward Area (hereinafter referred to as RBA) category. List was forwarded to appellant No. 1 who made appointments. Respondent being in the waiting list was not appointed and thus approached the court by means of SWP No. 304/2k. 4. On appreciation of the rival contentions, learned Single Judge has recorded in the course of order under appeal that 36 candidates for the post of Jr. Engineer Grade-II were selected and out of that selection only 29 candidates have joined. Fall out seats could not be filled up as the waiting list was not operated by the SSRB for the reasons best known to them. Learned Single Judge has allowed the writ petition. We have heard the learned counsel for the parties and perused the record. 5. At the very outset it is to be recorded that the plea taken in the present appeal that the SSRB has written a communication dated 23.03.1999 to appellant No. 1 conveying therein, not to operate the list, was not the plea of the appellant-Board before the learned Single Judge in their objections. Board pleaded in the counter-affidavit that since SSRB has made the selection it is for the appointing authority to consider the writ petitioner for appointment. 6. We have perused this communication. It appears that this communication has been addressed on the representation of Diploma/Degree Holder candidates belonging to ST category for the post of Jr. Engineer (Civil). Board pleaded in the counter-affidavit that since SSRB has made the selection it is for the appointing authority to consider the writ petitioner for appointment. 6. We have perused this communication. It appears that this communication has been addressed on the representation of Diploma/Degree Holder candidates belonging to ST category for the post of Jr. Engineer (Civil). This communication, therefore, pertains to the selection of Jr. Engineer (Civil) earmarked for to ST category and not for RBA category. Assuming this is the situation as State has understood that the waiting list has not to be operated upon, this was not the stand taken by the Board before the learned Single Judge. Mr. Thakur in rebuttal to the arguments of the learned counsel for the appellants in support of his plea has relied upon case titled Jai Narain Ram v. State of U.P. and others, reported in AIR 1996 SC 703, wherein point in issue before the Apex court was that the selection was made against four posts, candidates did not join and next meritorious was not offered the post. Dealing with the situation, Apex Court observed in paras 6 and 7 which reads as under:- "6. It is not in dispute that the appellant is a reserved candidate belonging to Scheduled Castes. In view of the admitted position that four posts were reserved in the Finance Department in category I mentioned earlier and 4 selected candidates appeared to have not joined in the service, as asserted in para 11 of the S.LP. and not specifically denied by the respondents in the counter-affidavit in para 6 as referred to earlier, it is clear that the appellant also is the 4th candidate in the order of merit would have been selected, had there been a requisition by the State Government for appointment of the reserved candidates. 7. Right to seek appointment to a post under Article 14 read with Article 16(l) and (4) is a constitutional right to equality. The State failed to perform its constitutional duty to requisition the P.S.C. to recommend the next qualified person to the posts reserved for Scheduled castes. Under these circumstances, the denial of appointment to the appellant and three others above him is unconstitutional. Therefore, the respondents are not justified in denying the claim of the appellant for the appointment to the above post." 7. Case of the respondent herein is on better footing. Under these circumstances, the denial of appointment to the appellant and three others above him is unconstitutional. Therefore, the respondents are not justified in denying the claim of the appellant for the appointment to the above post." 7. Case of the respondent herein is on better footing. Respondent has been selected and placed in the waiting list. Waiting list has been framed by the SSRB strictly in accordance with law. If rule does not provide for framing of waiting list, issue would have been dealt with accordingly. Here in the present case it has been made obligatory for the SSRB to frame the waiting list of 20% of the total number of the selected candidates by enacting specific law in terms of SRO 332 of 1999 promulgated vide Notification dated 25.11.1999 which reads as under:- "SRO 332 -- In exercise of the powers conferred by the proviso to section 124 of the Constitution of Jammu and Kashmir, the Governor hereby directs that Sub-rule (vi) of rule 10 of the Jammu and Kashmir State Subordinate Services Recruitment Rules, 1992 shall be substituted by the following namely:- "The Board shall also finalise waiting list of 20% of the total number of selected candidates and forward the same to the concerned Department. The waiting list shall remain in force for a period of one year from the date of its receipt or till a fresh list is drawn up by the Recruitment Board, whichever be earlier." 8. Waiting list has been framed by SSRB while discharging the statutory obligation. Respondents have not taken stand before the learned Single Judge that waiting list is not to be operated rather stand taken is that waiting list, if any, is for fall out vacancies and it is for the appointing authority to consider the case of the candidates out of waiting list for their appointments, if the candidates out of the main select list do not join. 9. Mr. Gupta, Learned AAG, could not make out before the court as to whether communication relied upon could be made applicable to the RBA category also, whereas communication specifically contains a mention, for not operating the waiting list with regard to the ST category. 9. Mr. Gupta, Learned AAG, could not make out before the court as to whether communication relied upon could be made applicable to the RBA category also, whereas communication specifically contains a mention, for not operating the waiting list with regard to the ST category. It is also not made out as to whether the Board has jurisdiction after making selection and preparing waiting list to command Respondent No. 1 not to operate the waiting list which has been prepared as per mandate of law. 10. Board has been provided an opportunity to meet the challenge of the appellant as projected. It is settled proposition of law that once action of a particular authority is challenged before the court it is duty of that authority to defend its action. SSRB in this case has miserably failed. Learned counsel for the appellants could not make out as to whether the letter being contrary to the provisions of law could be entertained by the State, particularly when the selection has been made and not withdrawn by the SSRB. The fall out vacancies and the selected candidates are available, it is unjustified on the part of Respondent No. 1 not to utilise the vacancies for which selection list has been prepared and forwarded. For the aforesaid reasons, we are of the considered view that plea of the State-appellant cannot be entertained which is not justified. Therefore, we maintain the judgement of the learned Single Judge and dismiss the appeal.