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2007 DIGILAW 248 (JK)

Satpal Sharma v. State Of J. &K.

2007-11-13

Y.P.NARGOTRA

body2007
1. Through this writ petition petitioner is seeking writ of mandamus directing and commanding the respondents No. 1 and 2 i.e. State and Director Economics and Statistics to issue appointment order in his favour pursuant to the selection made by respondent No.3- Service Selection Board as referred to in the select list with a further relief for granting the benefit retrospectively from the date of the selection along with consequential benefits. 2. The case of the petitioner is that J&K Service Selection Board-respondent No. 3, issued advertisement notice dated 28th June 2001 for inviting application for the two posts of drivers available in the Planning and Development Department one in Open Merit Category and another in Schedule Caste Category in the Divisional Cadre Jammu. The petitioner applied and competed for the said post along with other eligible candidates. After the completion of the selection process, Service Selection Board published the select list in which name of the petitioner figures at Serial No. 1 in the open merit category, whereas another candidate was selected under the schedule caste category. Pursuant to the select list, Service Selection Board vide its Order No. SSB/Sel/Secy/12527 dated 9.02.2004 submitted the select list to the Financial Commissioner, Planning and Development Board, Jammu with the recommendation that appointment orders in favour of the selectees may be issued. Against the open merit category post name of petitioner Satpal Sharma was recommended as well as against the schedule caste category post name of one Bishamber Lal son of Chaman Lal was recommended. Pursuant to the said recommendation respondent No. 1, only appointed Bishamber Lal against the schedule caste category post. The petitioner has not so far been issued the appointment order. 3. Being aggrieved of the non issuance of the appointment order in his favour, petitioner has field the present writ petition. 4. The stand of the respondents No. 1 and 2 i.e. State and Director Economics and Statistics is that Planning Department vide its requisition No. DES/G-103/Dr(Adm)/DR/Min/98 dated 5-1998 requisitioned two posts one under RBA category and one under open merit category, and thereafter vide its No. DES/C-103/Adm/Dr.2000 (Adm) dated 6.6.2000 requisitioned two more posts one under open merit category and one under schedule caste category for Divisional Cadre Jammu. Thus accordingly, to the Service Selection Board in all four posts for making selection, two under open merit category, one under RBA category and one under Schedule Caste Category were referred. 5. Service Selection Board according to respondents No. 1 and 2, after completing selection process vide its order No. SSB/PA/Secy.7802/2001 dated 27th February 2001, submitted the select list to the Financial Commissioner, Planning and Development Department, Jammu in regard to the two candidates one under open merit category and one under schedule tribe category, with the recommendation for issuing appointment orders in their favour. The selected candidates as per this communication were one Mahmood Ahmad Khan under open merit category and one Lal Din under Schedule tribe category. As per the above said order dated 27th February 2001, the select list was in respect of the posts of Drivers in State Cadre. This letter was however, followed by letter No. SSB/Sts/Mtg/8147-48/2001 dated 25.05.2001, whereby Financial Commissioner Planning and Development Department was intimated by the Service Selection Board as follows:- "Kindly refer to your office letter No. PD/ES/80-51 (602) dated 22.3.2001 regarding the subject cited above. In this connection I am directed to request you to adjust two candidates who had been selected for the posts of Drivers vide this office letter No. SSB/PA/Secy/802/2001 dated 27.0.2001 against the Divisional cadre posts (one in Division Jammu and one in Division Kashmir) instead of State cadre. The remaining two posts which were referred .to SSB will be filled separately." 6. Respondents No. 1 and 2 acted upon the recommendation dated 27.02.2001 read with letter dated 25.05.2001, and filled up the one post available in Jammu Division by appointing one Mahmood Ahmad Khan against the open merit category and left the schedule tribe post for Kashmir Division. 7. Thereafter, vide order No.SSB/P A/Secy./1427-29/2001 dated 29.09.2001 Service Selection Board recommended two more persons for appointment one in open merit category for Divisional Cadre Jammu and one for Divisional Cadre Kashmir to the Financial Commissioner. For Divisional Cadre Jammu one candidate namely Ram Lal son of Lajan Ram resident of Ram Nagar District Udhampur was recommended for appointment. Accordingly, respondents No. 1 and 2 appointed Ram Lal against the available post under open merit category. For Divisional Cadre Jammu one candidate namely Ram Lal son of Lajan Ram resident of Ram Nagar District Udhampur was recommended for appointment. Accordingly, respondents No. 1 and 2 appointed Ram Lal against the available post under open merit category. Thus according to respondents No.l and 2 two posts available under open merit category got filled up and no post remained available out of the four posts requisitioned for selection by the Service Selection Board. 8. It is, however, not denied by respondents No. 1 and 2, that respondent No. 3- Service Selection Board vide its Order No. SSB/Sel./secy/125-27/04 dated 9.02.2004, recommended names of two more candidates one against open merit category and one against schedule caste category for appointment for Divisional Cadre Jammu. The recommended candidates were the petitioner against the open merit category and one Bishamber Lal against the schedule caste category. 9. Out of the two recommended persons including petitioner, Bishamber Lal against the schedule caste category was appointed against the available post in that category, and as there was no post available in the open merit category, therefore, appointment was not offered to the petitioner-Satpal Sharma. I have heard learned counsel for the parties. 10. The contention of Mr. Koul learned counsel for the petitioner is that irrespective of total number of the posts referred by respondent No. 2 to respondent No. 3-Selction Board, the fact of the matter is that Service Selection Board conducted the selection process in regard to the two posts referred to it vide requisition dated 6.6.2000 existing in Divisional Cadre Jammu. The break-up of the posts was one under schedule caste category and one under open merit category. 11. Pursuant to the aforesaid requisition according to Mr. Koul, Service Selection Board initiated selection process by issuance of advertisement Notice dated 28.6.2001 for the said two posts. The petitioner along with other eligible candidates participated in the selection process, which culminated into making of the recommendation of the two candidates, i.e. petitioner and one Bishamber Dass for appointment against the two available and referred posts one under the open merit category and one under the schedule caste category. The petitioner was entitled to be appointed for the post for which selection process was carried out and for which he was selected and also recommended for appointment by the Service Selection Board. However, according to Mr. The petitioner was entitled to be appointed for the post for which selection process was carried out and for which he was selected and also recommended for appointment by the Service Selection Board. However, according to Mr. Koul respondents cannot now deny the appointment to the petitioner by saying that no post is available out of the said two referred posts, because some one else has already been appointed thereon. 12. The contention of Mrs. Shekhar learned AAG is that against the four posts available in the Divisional Cadre Jammu requisition against the two posts was made in the year 1998 and requisition for other two post was made in the year 2000. In order to clarify the position regarding the availability of the posts she referrers to letter No. SSB/PA/Secy/1503/01 dated 7th November 2001, written by Secretary to J&K Service Selection Board Jammu to Financial Commissioner, Planning and Development Department, Civil Sectt. Jammu in which it was stated as follows:- "Kindly refer to your office letter No.PD-E&S/80-51 (602) dated 16.10.2001 in this connection I am to say that the Planning & Development Department had referred nine posts of the Divisional Cadre Jammu/Divisional Cadre Kashmir vide letter No. G-103/DR-Admdated 6.6.2001. As per our records the break-up of nine posts is as follows: - Divisional CadreJammu Divisional Cadre Kashmir OM 02 OM 03 SC 01 RBA 01 RBA 01 ST 01 04 05 The Board has so far recommended four candidates (Division Kashmir OM-01, ST-01 Division Jammu OM-02) leaving a balance of 5 candidates (SC-01, RBA-01 Div.Kashmir OM-02 RBA-01). This is for your kind information." 13. So as per the above said letter as against the open merit post available in Jammu Division recommendation of two candidates stood already made. Those two recommended candidates were namely Mehmood Ah.Khan and Ram Lal. Mrs. Shekhar learned AAG however, does not dispute the genuineness of the letter No. SSB/Sel/S.ec/1125-27/04 dated 9.02.2004 written by Secretary, J&K Service Selection Board to Financial Commissioner, Planning and Development Department. Through the above said letter, the recommendation for appointment of the two candidates including the petitioner was made by the Service Selection Board to Financial Commissioner. The Government vide its letter No. PD/E&S/34/2003 dated 19.3.2004 sought clarification from the Board regarding the recommendation of the petitioner against open merit category post. Through the above said letter, the recommendation for appointment of the two candidates including the petitioner was made by the Service Selection Board to Financial Commissioner. The Government vide its letter No. PD/E&S/34/2003 dated 19.3.2004 sought clarification from the Board regarding the recommendation of the petitioner against open merit category post. In the said letter it was stated that: "In this connection it may be stated that there is no post of Driver vacant/available under Open Merit in this department. Your own letter bearing No. SSB/FA/Secy/1503/01 dated 7.11.2001 will make it clear that only two posts (SC-01 and RBA 01) falling under District cadre Jammu were to be filled up. In view o this Shri Sat Pal Sharma s/o Shri Sriniwas R/O Baran, Jammu who had reported for his posting could not be considered for want of clarification from your end. It is requested that an appropriate candidate falling under category RBA be sent to this department in District cadre, Jammu." 14. The Board in response to the said letter vide its letter No. SSB/SD/Secy/782/04 dated 15.4.2004 stated as follows: "Kindly refer your letter No. PD/H&S/34/2003 dated 19.3.2004 regarding the subject cited above. In this connection the clarification is given hereunder in suppression of all previous correspondence regarding the subject. 1. Vide this office communication dated 2 7.2.2002 a selection of two candidates belonging to State Cadre was issued in accordance with the Advertisement Notice No 1 of 1997 the break up was Om-1 and ST-1. 2. Vide select list issued on 29.9.2001 two candidates were recommended in Divisional cadre, the break up was OM-1 (Kashmir) and OM-1 (Jammu). 3. Vide selection list issued on 9.2.2004, two candidates were recommended for appointment in pursuance advertisement Notice No.l of 2002 and in accordance with the requisition of your Department of 6.6.2000. It may be mentioned here that the requisition for the post was made from time to time, the details are given as under:- I. Two posts in State Cadre advertised vide Notification No. 1 of 1997 and selection made on 27.2.2001. II. Pour posts referred in Divisional Cadre in the year 1998. III. Five posts were referred on 6.6.2002 and selection was made on 9.2.2004 for two posts in Divisional Cadre, Jammu. II. Pour posts referred in Divisional Cadre in the year 1998. III. Five posts were referred on 6.6.2002 and selection was made on 9.2.2004 for two posts in Divisional Cadre, Jammu. From the above it is clear that 11 posts were referred for selection and only 8 posts have so far been filled up out of which one post of scheduled Caste is not available in Kashmir division. Accordingly the selectee may be allowed to join in terms of selection made by the Board." (Emphasis supplied). 15. In the reply filed by the respondent No.3, Service Selection Board, it has been stated that two posts of Drivers one under open merit category and another under schedule caste category were referred by the Planning and Development Department to the Board for selection vide requisition dated 6.6.2000 and the Service Selection Board pursuant to the said requisition advertised the posts in terms of advertisement notice No. 1 of 2002 and after completing the selection process recommended the names of two candidates to the Financial Commissioner, Planning and Development Department vide selection list dated 9.2.2004. 16. The selection of the petitioner, therefore, was pursuant to the requisition dated 6.6.2000, on the basis of which advertisement notice No. 1 of 2002 was issued and selection process was completed. Therefore, the petitioner was to be 1 appointed on the post for which he was selected, but it appears that the petitioner was not appointed because of the confusion created by the Selection Board itself by writing communication dated 25.5.2001 which appears to be based on misconception that recommendations earlier made were for Divisional Cadre post and not for State Cadre posts which was subsequently clarified by the Board that it related to the State Cadre posts and not to the Divisional Cadre posts. It appears that two candidates namely Mahmood Ahmad Khan and Lal Din recommended for appointment vide communication dated 27.2.2001 were recommended for appointment against the posts available in State Cadre but due to the above confusion, instead of adjusting these two candidates against the posts in State Cadre they were adjusted against the posts available in Divisional Cadre in the Directorate of Economics and Statistics Department for which requisitioned stood made on 6.6.2000. 17. 17. Be it so, the fact remains that petitioner has been selected pursuant to the selection process initiated on the reference of two posts in the Divisional Cadre Jammu, which have been filled up by the selectees of State Cadre Posts requisitioned in the year 1997, who could not have been appointed legally against the said post for which selection was made subsequently in the year 2004 by the Service Selection Board i.e. selection in question. Merely because the post against which the petitioner has been selected has been filled up by the respondents from the select list pertaining to the earlier selection made pursuant to advertisement notice No. 1 of 1997, right of the petitioner for being appointed cannot be defeated in law. A selected candidate has a right to be appointed only against the post for which he has been selected and not against the post for which he has not competed and selected. 18. This being the position, the writ petition of the petitioner deserves to be allowed, accordingly same is allowed and respondents are directed to appoint the petitioner against the post for which he has been selected and to shift the candidate who is occupying that post to his own post for which he got selected pursuant to the advertisement notice No. 1 of 1997. The appointment of the petitioner shall be deemed from the date on which recommendation dated 9.2.2004 was received for the purpose of seniority, but he shall not be entitled to the monetary benefits. This exercise shall be completed within a period of two months from today.