Research › Search › Judgment

J&K High Court · body

2003 DIGILAW 95 (JK)

Syed Shabir Shafi v. State Of J. &K.

2003-04-22

PERMOD KOHLI

body2003
Permod Kohli, J. 1. Twenty-one posts of Assistant Directors Statistics-cum-Evaluation were referred to the Public Service Commission vide letter No. PD-ESS/13/88 dated 6.2.1989 to be filled up on the basis of the Competitive Examination in accordance with the Recruitment Rules. 2. Consequent upon this reference, Public Service Commission issued advertisement notice No. PSC/Ex-89/88 dated 30.6.1989. Written examination as provided under the rules was conducted by the Public Service Commission. 187 candidates appeared in the said examination. However, 66 candidates were called for viva voce test. On the basis of the merit in the written examination and the Viva voce test, Public Service Commission recommended 20 candidates in the order of merit vide its letter No. PSC/Secy/Ads/93/ 194-95 dated 10.9.1993. Besides 20 candidates recommended for appointment, six candidates were listed in the waiting list. Petitioners in the present petition were at Sl. Nos. 3 to 6 in the waiting list forwarded by the Public Service Commission to the Government. Though 21 posts were advertised only 20 were recommended in view of reservation of one post by the Court in SWP 1640/93. No appointments could be made pursuant to the recommendation on account of some interim direction issued by the High Court and while the matter was pending State Govt. vide another Communication No. PD/E&S/DPC/92-93 dated 14.9.1993 referred another 15 posts to the Public Service Commission for fresh recruitment. In the mean-while interim directions issued by the High Court to make appointments to the post of the Assistant Director, Statistics-cum-Evaluation were vacated by the Division Bench on appeal. As a consequence of order of the Division Bench, Government issued appointments Orders of 20 candidates recommended by the Public Service Commission vide Order No. 70-PD of 1993 dated 15.10.1993. Subsequently, vide another Order No. 1-PD of 1994 dated 7.1.1994, remaining one post was also filled up out of the waiting list and one Javed Iqbal, who was at Sl. No. 1 of the waiting list was appointed. 3. Petitioners herein, who were in the waiting list filed present petition challenging the reference made by the Govt. for filling up of fresh 15 vacancies and also claimed that no fresh recruitment can be made till the waiting list is exhausted. According to the petitioners the life of the waiting list was one year and they have a preferential right to be appointed against the available vacancies. for filling up of fresh 15 vacancies and also claimed that no fresh recruitment can be made till the waiting list is exhausted. According to the petitioners the life of the waiting list was one year and they have a preferential right to be appointed against the available vacancies. Accordingly a direction was sought for their appointment against the available vacancies from the waiting list. At the time of filling of the petition, this Court issued an interim direction vide its order dated 5.4.1994, which is re-produced as under: Issue notice of show cause to the respondents. Notice in the CMP also. Petitioners were candidates for selection to the Post of Asstt. Director, Statistics-cum-Evaluation initiated vide PSC Notification ESS/13/88 dated 6.2.1989 which was issued on reference for filling up of 21 posts. They did not however, figure in the selection list but were recommended in the waiting list at Sl. Nos. 3 to 6 vide PSC communication dated 10.9.1993. Before the candidates recommenced by Public Service Commission including the petitioners could be appointed, the Administrative Department concerned made a fresh reference for making selection to 15 posts of Assistant Directors. Petitioners case is that the fresh reference could not be made as 15 posts had become available during the process of selection subsequent to PSC Notification dated 30.6.1989 and also because the PSC had specifically made the select list valid for one year by letter dated 10.9.1993. It is urged that respondent-State be directed to consider the petitioners for 4 posts out of 15 referred to PSC by withdrawing these posts from the Public Service Commission. 4. Considering the nature of issue raised, it is directed that respondent -- State shall consider the case of the petitioners upon representation made by them and explore the possibility of according consideration to then for appointment against 4 (four) posts of Assistant Director either by withdrawing the same from PSC or against any available posts as the case may be and as is permissible under rules and law. In case the representation is made by the petitioners, it shall be disposed of within two months from the date of receipt of this order. List after the service is complete." 4. In case the representation is made by the petitioners, it shall be disposed of within two months from the date of receipt of this order. List after the service is complete." 4. Though the Court only directed the respondent -- State to explore the possibility of according consideration to the petitioners for appointment against four posts of Assistant Directors, either by withdrawing the same from the Public Service Commission or against any available posts as is permissible under rules and law, the respondent -- State in its wisdom chose to appoint the petitioners as Assistant Directors, Statistics-cum-Evaluation vide Govt. Order No. 50-PD of 1994 dated 1.7.1994 allegedly in compliance to interim order dated 5.4.1994. In this appointment order however, there was a stipulation that the appointment is subject to out-come of writ petition. Writ petition remained pending and it was only on 13.8.2001 respondent State responded to the writ petition and filed its reply. Besides giving details of the sequence of selection process and the circumstances leading to the appointment of selected candidates as also the writ petitioners pursuant to the Court order, it is stated that the waiting list forwarded by the Public Service Commission including the names of the petitioners was without any requisition by the Government. It was also mentioned that 15 fresh vacancies referred to Public Service Commission became available between the period 6.2.1989 to 14.9.1993. Claim of the petitioners to occupy vacancies out of these 15 vacancies was contested. As regards the appointment of the petitioners vide Govt. Order No. 50-PD of 1994 dated 1.7.1994 is concerned, it is mentioned that this appointment was made pursuant to the Court direction and subject to out-come of the writ petition. 6. I have heard the learned counsel for the parties at length and perused the record on the file. It is not disputed that the petitioner were not in the list of selected/recommended candidates, though they were included in the waiting list forwarded by the Public Service Commission. The State referred only 21 vacancies for which the advertisement was issued and selection made. Neither reference letter nor the advertisement notice mentioned that the vacancies referred and advertised were available upto what date. After the completion of selection process and appointment of candidates against advertised posts candidates figuring in the waiting list cannot claim any right. The State referred only 21 vacancies for which the advertisement was issued and selection made. Neither reference letter nor the advertisement notice mentioned that the vacancies referred and advertised were available upto what date. After the completion of selection process and appointment of candidates against advertised posts candidates figuring in the waiting list cannot claim any right. The situation here is however, made complex by the Government itself by appointing the petitioners on 1.7.1994 out of the waiting list allegedly pursuant to the interim direction of the Court dated 5.4.1994. From the perusal of the interim order dated 5.4.1994, quoted hereinabove, it is amply clear that the Court never issued any direction asking the respondent -- State to appoint the petitioners who were on the waiting list. This Court only directed the respondents to accord consideration for appointment that too under rules and law. Respondents were only required to consider whether the petitioners are under law and rule entitled for such appointment and if so to appoint them. Even on according consideration, if the State was of the opinion that the petitioners had no right of appointment on the basis of their names figuring in the waiting list or that the waiting list was not forwarded at its requisition or otherwise, cannot be operated upon, the state was under no obligation or direction to appoint the petitioners. The fact of the matter is that the State decided to appoint the petitioners taking advantage of the Court order, which in no manner issued any mandate for appointment of the petitioners. Petitioners are now holding the posts for the last nine years. Why the State responded to the writ petition after seven years despite seeking various opportunities, is also not understandable. 7. There is yet another aspect of the matter that under the recruitment rules, the petitioners were to be placed for probation for a period of two years. Nothing was done to either seek vacation of the interim order, its clarification nor any effort was made to have the matter decided by the Court at the earliest. From the record, it appears that the delay in the decision of the case is totally attributable to the respondents. During this interregnum petitioners were confirmed on completion of their probation, they were allowed all service benefits & included in the seniority list issued vide Govt. Order No. 26-PD of 1999 dated 20.5.1999. From the record, it appears that the delay in the decision of the case is totally attributable to the respondents. During this interregnum petitioners were confirmed on completion of their probation, they were allowed all service benefits & included in the seniority list issued vide Govt. Order No. 26-PD of 1999 dated 20.5.1999. Not only this the petitioners became eligible for their further promotion to the post of Dy. Director they were considered and consequently approved for promotion as Deputy Directors vide Govt. Order No. 30 PD of 2001 dated 27.4.2001. Copies of the seniority list, service books as also the promotion order were placed on record by the petitioners through the medium of CMP filed during the pendency of the petition. 8. Learned counsel appearing for the respondents has argued that as per the law laid down by the Apex Court in Madan Lal & Ors. v. State of J&K & Ors., AIR 1995 SC 1088, the candidates in the waiting list have no right to seek appointment and the appointment is permissible only upto the extent of advertised vacancies. Their Lordships of the Supreme Court of India held as under: 21. This takes us to the last contention. The learned counsel for the petitioners submitted that as per the requisition forwarded by the State of Jammu & Kashmir through the Secretary to the Law Department, the second respondent was required to hold the selection process for recruiting candidates from open market for filling up 11 vacancies. The said letter of the Secretary to Govt. Law Department is at Annexure - A to the petition. It reads as under:- GOVERNMENT OF JAMMU AND KASHMIR, CIVIL SECTT. LAW DEPARTMENT. To The Secretary, J&K Public Service Commission, Srinagar. No. LD (A) 92/78 dated 22.7.1992. Subject: Selection of candidates for appointment as Munsiffs in the Judicial Department. Sir, I am directed to say that the Public Service Commission may kindly start a process in accordance with the Jammu & Kashmir Civil Service (Judicial) Recruitment Rules, 1967 for selection of candidates for appointment as Munsiffs in the K.C.S (Judicial) Service. However, considering the fact that only 11 vacancies are presently available, only a select list of twenty candidates inclusive of Scheduled Castes/Scheduled Tribes candidates as per their reservation quota may kindly be prepared and furnished to the Government. No waiting list of candidates is required. However, considering the fact that only 11 vacancies are presently available, only a select list of twenty candidates inclusive of Scheduled Castes/Scheduled Tribes candidates as per their reservation quota may kindly be prepared and furnished to the Government. No waiting list of candidates is required. Yours faithfully, Sd/- (G .A.Lone) Secretary to Government Law Department" 9. A mere look at the letter shows that the Government requested the Commission to hold selection for filling up 11 clear vacancies only . The letter nowhere showed that more vacancies were likely to arise in future and selection may be held also for such anticipated vacancies. It is true that the latter mentioned that a select list of 20 candidates may be prepared and furnished to the Govt. but these 9 additional candidates would serve as waiting list candidates from which eligible candidates can be drawn in order of merits if any of the first 11 candidates selected did not join or for any reason could not join. That is the precise reason why no separate list of waiting list candidates was directed to be prepared. Learned senior counsel for the petitioners was right when he submitted that the recruitment process in the present case was only for filling up 11 existing clear vacancies of Munsiffs. It is not possible to agree with the respondents that this requisition also took note of anticipated vacancies during the course of one year and, therefore, it can be said to be a requisition for recruiting 20 candidates on clear and anticipated vacancies. If that was so, the contents of the letter would have been different. We agree with the learned counsel for the respondents that while sending the requisition for recruitment to posts the Govt. can keep in view not only actual vacancies during one more year or for a given period of time and in that case the requisition would cover actual vacancies and anticipated ones. But on the clear wordings of the aforesaid letter it is not possible to agree with this submission. It must be held that the requisition in the present case by the Government was for holding selection tests by the Commission for filling up 11 clear vacancies and nothing more. No anticipated vacancies were contemplated to be filled in. The process of recruitment was got initiated by the State through the Commission for only eleven clear vacancies." 10. It must be held that the requisition in the present case by the Government was for holding selection tests by the Commission for filling up 11 clear vacancies and nothing more. No anticipated vacancies were contemplated to be filled in. The process of recruitment was got initiated by the State through the Commission for only eleven clear vacancies." 10. On the other hand Mr. Iqbal, learned counsel appearing for the petitioners has argued that the advertisement notice did not take into consideration the anticipated vacancies. Therefore, the judgement in Madan Lals case (Supra) has no application to the facts of the present case. He has further relied upon a subsequent judgement of the Apex Court in case Prem Singh v. Haryana State Electricity Board & Ors., 1996 (4) Supreme 411. 11. It cannot be disputed that in Madan Lals case (Supra) the Apex Court held that appointment can only be made against the advertised vacancies and no candidate appearing whether in the select list or in the waiting list beyond the advertised vacancies can claim any right of appointment on such basis. In the instant case the situation is slightly different. The State of its own and for reasons best known to it appointed the petitioners out of the waiting list by taking refuge under the interim directions of the Court which never issued any directive to appoint the petitioners. State could have simply accorded consideration and rejected the claim of the petitioners, if according to it petitioners had no right. The State after having appointed the petitioners without there being any positive direction from the Court to make such appointment and allowed the petitioners to continue to hold the posts by allowing all service benefits to them including promotion for a period of nine years, cannot be permitted to say that the petitioners appointment is invalid. Had the State not appointed the petitioners, they would have made efforts for alternative avenues of service or other vocations. Because of the appointments made by the respondent -- State, the petitioners are continuing on the posts for a period of nine years, which is too long a period to deprive the petitioners of their right to hold the post in question, even if it is assumed that their appointment was not permissible. Because of the appointments made by the respondent -- State, the petitioners are continuing on the posts for a period of nine years, which is too long a period to deprive the petitioners of their right to hold the post in question, even if it is assumed that their appointment was not permissible. State cannot shift its responsibility either to the Court or to the petitioners under the facts and circumstances of this case. It would be tortuous if the petitioners are asked at this belated stage to look for alternate job by relinquishing the posts held by them. Some or all of them might have become over-age and they may be unable to seek any job. Because of their continued service for a period of nine years, there is a legitimate expectation that they are saddled in position as permanent employees of the Government. What has been stated above is also one of aspect of the issue. 12. In the subsequent case Prem Singh v. Haryana State Electricity Board (Supra) the Apex Court held as under: 12. From the above discussion of the case law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies but not for future vacancies. If the requisition and advertisement are for certain number of posts only the State cannot make more appointments than the number of posts advertised. Even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf, even when filling of more posts than advertised is challenged the Court may not, while exercising its extra-ordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case. 13. In the present case, as against 62 advertised posts the Board made appointments on 138 posts. The selection process was started for 62 clear vacancies and at that time anticipated vacancies were not taken into account. What relief should be granted in such cases would depend upon the facts and circumstances of each case. 13. In the present case, as against 62 advertised posts the Board made appointments on 138 posts. The selection process was started for 62 clear vacancies and at that time anticipated vacancies were not taken into account. Therefore, strictly speaking the Board was not justified in making more than 62 appointments pursuant to the advertisement published on 2.11.1991 and the selection process which followed thereafter. But as the Board could have taken into account not only the actual vacancies but also vacancies which were likely to arise because of retirement etc. by the time the selection process was completed it would not be just and equitable to invalidate all the appointments made on posts in excess of 62. However, the appointments which were made against future vacancies in this case on posts which were newly created - must be regarded as invalid. As stated earlier, after the selection process had started 13 posts had become vacant because of retirement and 12 because of deaths. The vacancies which were likely to arise as a result of retirement could have been reasonably anticipated by the Board. The Board through oversight had not taken them into consideration while a requisition was made for filling up 62 posts. Even with respect to the appointments made against vacancies which arose because of deaths, a lenient view can be taken and on consideration of expediency and equity they need not be quashed. Therefore, in view of the special facts and circumstances of this case we do not think it proper to invalidate the appointments made on those 25 additional posts. But the appointments made by the Board on posts beyond 87 are held invalid. Though the High Court was right in the view, it has taken, we modify its order to the aforesaid extent. These appeals are allowed accordingly. No order as to costs." 13. The ratio of the aforesaid judgement indicate that there is no absolute bar of making appointment of candidates beyond the advertised vacancies. The ratio further points out that the State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. The ratio further points out that the State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. In the case before the Apex Court as against 62 advertised posts, the Board appointed 138 candidates. The selection process was started for 62 clear vacancies and at that time anticipated vacancies were not taken into account. The Apex Court declined to invalidate the selection of candidates appointed in excess of the advertised vacancies on the ground that when the advertisement was made the same was confined only to the clear vacancies and anticipated vacancies were not taken into consideration. In this view of the matter, the appointments made against anticipated vacancies were not disturbed. The Apex Court however, did not approve the appointments made against fresh vacancies. 14. In the present case, the respondent -- State in its objections filed before the Court mentioned as under: x x x x x x x x x x x x x x It may be submitted that during the period from 6.2.1989 when the said posts were referred to the PSC for selection of suitable candidates to 14.9.1993, 15 more vacancies of Asst. Directors, Statistics under direct recruitment quota had become available and these were also referred to PSC on 14.9.1993.xx x� 15. From the above, it appears that anticipated vacancies were not taken into consideration when the first advertisement notice was issued on 6.2.1989. Therefore, the appointment of the petitioners can conveniently be taken as against anticipated vacancies. 16. In view of the discussion made above and the law laid down by the Apex Court, I am of the considered opinion that the petitioners appointment is a fait accompli and cannot be disturbed at this belated stage. Needless to say that they are entitled to all service benefits which have been allowed to them so far or they may be found entitled to in future under the service rules. The writ petition is accordingly disposed of. No order as to costs.