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2007 DIGILAW 130 (JK)

Shabir Ahmad Dar v. State Of J. &K.

2007-07-16

AFTAB ALAM, NISAR AHMAD KAKRU

body2007
Per Aftab Alam, ACJ: 1. On the basis of the recruitment examination held by the J&K Public Service Commission (hereinafter referred to as "the Commission") in pursuance of requisition made by the State Government in the year 1995, the three appellants seek a direction from the Court, asking the State Government to appoint them on the posts remaining vacant due to non-joining of five candidates from the first select list. It may be noted at the outset that after the appointments in pursuance of the 1995 requisition, two recruitment processes were completed on the basis of the requisitions made by the State Government in the years 1999-2000 and 2002. The recruitment process in pursuance of the requisition made by the State Government in the year 2004-05 is under way and the recommendations of the Public Service Commission are awaited. Nevertheless, on behalf of the appellants it is insisted that their right to appointment against the vacancies under the 1995 requisition of the State Government cannot be defeated because they had come to this Court while the `wait list, according to them, was still subsisting. In this regard reliance is also placed on an interim order passed at the stage of the writ petition to which I shall presently refer. 2. Seeking the relief, as indicated above, appellants 1 and 2 along with one Mir Afroz came to this Court in SWP no. 1656/2000, Later two others, including appellant no.3, joined as writ petitioners, and the total number of writ petitioners became five. On 21 December, 2000, in the absence of any reply from the respondents, the Court passed an interim order in the writ petition directing the Commission to forward the names (of the writ petitioners) and the State to consider them for appointment, in accordance with the rules, against those posts within four weeks. The interim direction was expressly made subject to the outcome of the writ petition with the further stipulation that in case the writ petition did not succeed the petitioners would not be heard on the point of equity. For some reason the interim direction of the Court was not complied with and consequently a petition (Contempt petition no 291/2001 ) -was filed fur initialing proceedings of contempt against the concerned Government authorities for the alleged disobedience of the Courts interim direction. For some reason the interim direction of the Court was not complied with and consequently a petition (Contempt petition no 291/2001 ) -was filed fur initialing proceedings of contempt against the concerned Government authorities for the alleged disobedience of the Courts interim direction. While the proceedings in the contempt petition were still pending, the main writ petition came to be taken up and on a consideration of the petitioners claim and the stand taken by respondent authorities; the Writ Court found and held that the petitioners not entitled to the relief prayed for. The writ petition was, accordingly, dismissed by judgment and order dated 10 May, 2005. As a result, the contempt proceeding also came to end, since the interim direction was expressly made subject to the final result of the main case. 3. This appeal is preferred (by 3 among the five writ petitioners) against the judgment and order passed by the Writ Court. 4. Mr. M. A. Qayoom appearing for the appellants submitted that the 1995 Government requisition to the Commission was for filling up 266 posts in the State Administrative Service and other allied services. On the basis of the Combined Competitive Examination held by the Commission, it recommended to the State Government a list of 266 selected candidates who were appointed to different services vide Government order dated 10 July, 1999, On 8 July, 2000 the Government created four additional posts of Deputy Superintendent of police and filled up those posts by withdrawing three people from J&K Accounts Service and one from J&K Co-operative Service who were recently appointed to those services on the basis of their selection/recommendation by the Commission but who prior to their selection/appointment to those services were working in the police Department. For filling up the resultant vacancies the Government asked the Commission vide letter dated 31 July, 2000 to send four more names from the wait list of the candidates. In response the Commission sought clarification from the Government whether those vacancies fell within the total number of 266 posts notified in 1995. The Government answered in the affirmative and stated vide letter dated 22 August, 2000, that the available vacancies were within the total number of posts referred to the Commission in 1995. In response the Commission sought clarification from the Government whether those vacancies fell within the total number of 266 posts notified in 1995. The Government answered in the affirmative and stated vide letter dated 22 August, 2000, that the available vacancies were within the total number of posts referred to the Commission in 1995. On this, the Commission by letter dated 25 September 2000 sent names of four more candidates who were appointed against the vacancies resulting from the withdrawal of the four candidates from the States Accounts Service and Co-operative Service to fill up the newly created posts of Deputy Superintendents of Police. 5. Mr. Qayoom submitted that apart from these four vacancies that occurred and were filled up in the manner indicated above, five more posts remained vacant. Following the issuance of appointment order on 10 July, 1999, 140 candidates were directed to report to the J&K Institute of Management, Public Administration and Rural Development within twenty-one days from the date of appointment order. Five of the appointed candidates did not join the institute as would be evident from the letter of the Deputy Director (date not legible) (Annexure A to the writ petition). Counsel further submitted that as a consequence of their failure to join, the appointment of those candidates was cancelled by the Government by orders dated 9 August, 2000 and 10 October 2000. Mr. Qayoom argued that as in the case of the four vacancies resulting from the creation of four posts of Deputy Superintendent of Police, the State Government was obliged to call for five more names from the Commission for filling up the/vacancies resulting due to the non-joining of the appointed candidates. The Counsel vehemently argued that the five vacancies remained unaccounted for and it is not clear from the materials brought before Court as to how, if ever, those were filled up. 6. The submission made by Mr. Qayoom directly raises the question regarding the rights of a candidate finding place in the select panel/wait list. As a matter of fact, earlier on 30 August, 2006 another Bench hearing the appeal framed the following two issues as arising in the case for consideration and determination: 1. Whether the State respondent was obliged to fill up five posts that had become available on the non-joining of the selected candidates or whether it could reserve these posts for any future selection? 2. Whether the State respondent was obliged to fill up five posts that had become available on the non-joining of the selected candidates or whether it could reserve these posts for any future selection? 2. Whether a candidate figuring in the waiting list which was operative on the date of his filing of writ petition, had an automatic right to ask for the operation of the waiting list merely because the vacancies have become available on account of non-joining of the selected candidates? 7. On 30 August, 2006 the case was adjourned to enable both sides to examine the legal position on the two questions. From the Courts order dated 19 September, 2006 it appears that in support of the appellants claim, Mr. Qayoom relied upon a decision of the Supreme Court in Gujarat State Deputy Executive Engineers Association v State of Gujarat, (1994) Supp 2 SCC 591. Counsel tried to answer the question in favour of the appellants relying upon the same decision of the Supreme Court. 8. Certain observations made in paragraph 8 of the decision in the Gujarat State Deputy Executive Engineers Association v State of Gujarat (supra), indeed, appear to lend support to the contention that `a candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other candidate does not join. But the decision was rendered on completely different facts and the observations were made in a different context. In Gujarat State Deputy Executive Engineers Associations case, proceeding on the premise that vacancies available for appointment by direct recruitment had not been correctly worked out by the State Government, the Gujarat High Court gave directions to operate and implement the select list prepared by the Gujarat Public Service Commission on the basis of the examination held in 1980 and to fill up certain vacancies that, according to the Courts reckoning, were available in that year and further to fill up the vacancies arising in the subsequent years 1981, 1982 and 1983 till the result of the next examination was declared on 21 September, 1983. In Gujarat State Deputy Excise Engineers Association, the main issue before the Supreme Court was not the rights of the candidates on the wait list. In Gujarat State Deputy Excise Engineers Association, the main issue before the Supreme Court was not the rights of the candidates on the wait list. The main issue in the case was extension of the wait list into the future and to make it operative for filling up vacancies in later years, long after the select panel/wait list was prepared. On that issue, the Supreme Court held that in no case the vacancies arising in future could be offered to the candidates in the waiting list of the earlier years. The relevant extract from paragraph 10 of the decision in Gujarat State Dy. Executive Engineers Association v State of Gujarat (supra), is as follows: "... But in no case the vacancies arising in future should have been offered to the candidates in the waiting list of the earlier year. The direction of the High Court, therefore, to appoint the candidates from the waiting list in the vacancies which, according to its calculation, arose between the year 1980 to 1983 and between 1983 to 1993 cannot be upheld." It was in that context that the observations were made in paragraph 8 of the decision. 9. The question regarding the rights of a candidate finding a place in the merit list came up directly for consideration before a Constitution Bench of the Supreme Court in Shankarsan Dash v Union of India, AIR 1991 SC 1612. The facts giving rise to the case are stated in paragraph 3 of the decision as follows: "In June, 1979, 14 vacancies arose in the IPS due to selected candidates not joining the service. Out of the same, 11 were in the general category and 3 in the reserved category. Three vacancies in the reserved category were filled up by the candidates who had been earlier appointed in DANIP Service, but no appointments were made to general category vacancies. The appellant, by a representation, prayed that these vacancies also should be filled up. Out of the same, 11 were in the general category and 3 in the reserved category. Three vacancies in the reserved category were filled up by the candidates who had been earlier appointed in DANIP Service, but no appointments were made to general category vacancies. The appellant, by a representation, prayed that these vacancies also should be filled up. The request was turned down, and the appellant moved the Delhi High Court by a writ application under Article 226 of the Constitution, which was dismissed in limine by the impugned order." Dealing with the legal question concerning the candidates right, theCourt in paragraph 7 of the decision held as follows: "It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test and no discrimination can be permitted." 10. A more recent decision of the Supreme Court, on facts almost identical to the case in hand, is to be found in Bihar State Electricity Board v Suresh Prasad, AIR 2004 SC 1724. In that case the Board notified the selection of 22 candidates pursuant to an advertisement issued by it. However, out of 22 candidates selected for appointment only 4 joined. Consequently, 18 vacancies remained unfilled as the candidates did not turn up. In that circumstance, the candidates who had qualified in the written-test and oral interview and who were in the merit list at serial no.23 and down words, moved the High Court in a writ petition, contending that since 18 out of 22 selected candidates did not join, they should be given appointment. In that circumstance, the candidates who had qualified in the written-test and oral interview and who were in the merit list at serial no.23 and down words, moved the High Court in a writ petition, contending that since 18 out of 22 selected candidates did not join, they should be given appointment. The relief prayed for on their behalf was granted by the High Court. Aggrieved by the High Courts order, the Bihar State Electricity Board preferred an appeal before the Supreme Court. Allowing the Boards appeal, the Supreme Court observed and held in paragraphs 6 and 7 of the decision as follows: "We find merit in this appeal preferred by the Board. In the case of Shankarsan Dash v Union of India (supra) it has been held by this Court that even if number of vacancies are notified for appointment and even if adequate number of candidates are found fit the successful candidates do not acquire any indefeasible right to be appointed against existing vacancies. That ordinarily such notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. It was further held that the State is under no legal duty to fill up all or any of the vacancies unless the relevant recruitment rules indicate so. In the present case we are not shown any such relevant recruitment rules. Moreover, there is no merit in the contention advanced on behalf of respondent Nos. 1 to 7 that the appellant had Violated the order of High Court dated 23rd March, 1994 by preparing a list of only 22 candidates instead of filling up 50% of the alleged 161 vacancies. In this connection, the impugned judgment of the High Court has recorded a finding of fact that the Board has rightly reduced the number of vacancies to 50 and to that extent claim of the writ petitioners was rejected. In the impugned judgment, the High Court found that 50 vacancies were required to be filled up, 25% against the advertisement dated 15th December, 1986 and 25% against advertisement dated 25-1 1-1992. However, according to the impugned judgment, the appellant ought to have made appointments by preparing a further panel for 18 vacant posts which became vacant when the earlier 18 selected candidates opted out. However, according to the impugned judgment, the appellant ought to have made appointments by preparing a further panel for 18 vacant posts which became vacant when the earlier 18 selected candidates opted out. It is this part of the reasoning of the High Court, which is fallacious. 11. In the present case pursuant to the direction of the High Court dated 23-3-1994, the appellant took steps for filling up 25 vacancies in the post of Operators from advertisement No.3/86 and the remaining 25 vacancies from advertisement No.6/92. The results were notified on 29-4-1994 on the notice Board. The Board recommended names of successful candidates under advertisement No.3/86 and advertisement no.6/92. Out of 22 candidates selected by the Board for appointment under advertisement No.3/86, 18 candidates did not turn up. At this stage it is important to note that respondent Nos. 1 to 7 had applied for appointment under advertisement No.3/86 dated 15-12-1986 and they had qualified but they were placed at serial No.23 onwards in the descending order. As stated above, a panel of 22 candidates was prepared for appointment under advertisement No.3/86 and respondent Nos. 1 to 7 fell beyond cut-off number. We are not shown any statutory recruitment rules which require the appellant-Board to; prepare a waiting list in addition to the panel. The argument advanced on behalf of respondent Nos. 1 to 7 was in effect that when 18 candidates failed to turn up the appellant was bound to offer posts to candidates in the waiting list. No such rule has been shown to us in this regard. In our view, the judgment of this Court in the case of Shankarsan Dash v Union of India (supra) squarely applies to the facts of this case. Further there was no infirmity in the judgment of this case Court delivered on 4-12-1998 and in our view with respect there was no need to recall the said judgment." (emphasis added) 12. On a careful consideration of the submissions made by Mr. Oayoom, 1 am of the considered view that the case in hand is fully covered by the Constitutional Bench decision of the Supreme Court in Shankarsan Dash (supra) and the later decision of the Supreme Court in Bihar State Electricity Board (supra). On a careful consideration of the submissions made by Mr. Oayoom, 1 am of the considered view that the case in hand is fully covered by the Constitutional Bench decision of the Supreme Court in Shankarsan Dash (supra) and the later decision of the Supreme Court in Bihar State Electricity Board (supra). It, therefore, follows that the\appellants position in the wait list did not confer upon them any legally enforceable right and the appellants cannot ask for any direction to the State Government to call for more names from the Commission and thus to appoint them. 13. Apart from the legal position, I am of the view that the appellants have no case on facts either. When all the facts are taken into account, the action of the Government in not calling for more names from the Commission cannot be said to be arbitrary, unreasonable or unjustified. Much of the confusion has arisen in the case because the facts were presented on behalf of the writ petitioners-appellants in an over simplified way. It was stated on their behalf that the Commission recommended the names of 266 candidates who were appointed by the Government order dated 10 July, 1999. Vacancies then arose due to creation of four posts of Deputy Superintendents of Police and as a result of non-joining of some of the appointed candidates in sets of 4 and 5 respectively. The set of 4 vacancies were filled up by obtaining fresh names from the Commission but the other set of 5 vacancies remained unfilled up as the State Government did not ask for more names from the Commission. In actual fact the process of recommendation by the Commission and the appointment by the Government was not so simple. Recommendation of the 266 candidates was not made by the Commission at one time. The recommendations were made in four or five stages and the relevant details in this regard are stated in the affidavit filed by the Principal Secretary to Government, General Administration Department. It is stated in the affidavit that the Commission first issued the merit list of the selected candidates for allocation of services vide notification dated 26 April, 1999. Later, on 7 July, 1999 the Commission informed the Government about certain alterations and changes in the allocation of services to the candidates on account of an overall review. It is stated in the affidavit that the Commission first issued the merit list of the selected candidates for allocation of services vide notification dated 26 April, 1999. Later, on 7 July, 1999 the Commission informed the Government about certain alterations and changes in the allocation of services to the candidates on account of an overall review. In the list of 7 July, 1999 the Commission indicated the names of 261 candidates for allocation of services. In regard to certain candidates (5 in number) whose names were included in the list of 261, the Commission withheld the result due to various reasons, e. g., medical fitness, verification of reserved category etc. Out of the list of 261, the Government appointed 260 candidates by order dated July 12, 1999. One candidate was not appointed by that appointment order on account of disputed eligibility. In regard to the 5 candidates, whose results were withheld in the list of 7 July, 1999, recommendations were made by the Commission later and through separate letters. The appointment of one of the recommended candidates remained held up due to the pendency of a case in the High Court and his appointment order was issued only after the case was dismissed by the High Court. Four more names were called by the Government as a result of creation of 4 posts of Deputy Superintendent of Police. Before sending four more names, the Commission wanted to know whether those four posts were part of the 266 posts under requisition. By that time though the cancellation order in regard to the non-joining Candidates had not been issued, it was fairly apparent to the general Administration Department that more than four posts would remain vacant for that reason and hence, the reply was given to the Commission, in the affirmative. Later, appointment orders in regard to 5 candidates were cancelled due to their non-joining. All this happened over a fairly long period of time and by 25 October, 2000, the date on which the extended period of the waiting list came to an end, the final position that emerged, after all appointments and cancellations were made, is given in the affidavit in a tabular form that is as follows: APPOINTMENTS MADE SI. no. Government Order No.and date No of Appointments made 1. 789-GAD of 1999 dated 12.07.1999 260 2. 1206-GAD of 1999 dated 25.10.1999 2 3. no. Government Order No.and date No of Appointments made 1. 789-GAD of 1999 dated 12.07.1999 260 2. 1206-GAD of 1999 dated 25.10.1999 2 3. 1213-GAD of 1999 dated 26.10.1999 1 4. 515-GAD of 2000 dated 08.05.2000 (services of 4 candidates appointed toAccounts and Cooperative (Gaz.) Services were changed to Police (Gaz.)Services against newly created 4 posts.) 4 5 529-GAD of 2000 dated 11.05.2000 1 6 1278-GAD of 2000 dated 23.10.2000 5 7 1019-GAD of 2001 dated 04.09.2001 1 8 217-GAD of 2002 dated 01.02.2002 1 Total 275 APPOINTMENTS CANCELLED UPTO 25-10.2000 1. 515-GAD of 2000 dated 8.5.2000 (due to change of services of 4 candidates appointed to Accounts and Cooperative (Gaz.) Services to Police (Gaz.) Services against newly created 4 posts) 4 2. 932-GAD of 2000 dated 09.08.2000 4 3. 1190-GAD of 2000 dated 10.10.2000 1 Total 9 Net Appointments made (A -- B) = 275-9 = 266 14. It is thus to be seen that the total number of appointments was exactly the same as the vacancies covered by the 1995 requisition. The affidavit of the Principal Secretary states in detail the manner in which the appointments were made and I am satisfied that the appointments were made in a proper manner and there is no occasion for any interference by the Court. There is nothing for the Court to assume that 5 posts remaining vacant due to non-joining of the 5 candidates from the Commissions first list remained unfilled up till the end or that those were not covered by the Governments requisition for the year 1999-2000 and 2002. 15. Before concluding, it may also be stated that at no stage it was the case of the appellants-writ petitioners that any one below them in the waiting panel was appointed by the State Government. I am clearly of the view that the appellants are not entitled to any relief Writ Court rightly dismissed their writ petition. I find no merit in this appeal. It is, accordingly, dismissed.