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J&K High Court · body

2009 DIGILAW 230 (JK)

Bhavna Abrol v. State

2009-05-15

SUNIL HALI

body2009
1. 32 posts of Lecturers in the discipline of Zoology were referred to the Public Service Commission in the year 1997. In pursuance to this notification, selection process was initiated and consequently list of 32 selected candidates was sent to the Government for appointment. The entire 32 candidates stand appointed. In addition, list of 30 candidates in the waiting list was also submitted. It transpires that 25 candidates out of the waiting list were appointed as Lecturers vide order dated 29-6-2001. It is this order, which is subject matter of challenge before this Court. 2. Petitioners applied for the said posts in pursuance to the notification. The eligibility provided for appointments to the posts of Lecturers in Zoology, was M.Sc. in the subject. The recruitment process did not start till late in the year 1999. In October, 1999, the Public Service Commission called upon the petitioners to appear in the written screening test. This test was restricted to only those candidates who did not possess M.Phil or Ph.D on that date the petitioners had not obtained their Doctorate Degree as such, were required to appear in the written test. It seems that this condition was challenged by the petitioners by filing writ petition in this Court. The said writ petition has been allowed. The State has filed LPA against this order. The Division Bench stayed the order of the learned Single Bench. It is stated in the petition that the LPA is pending before this Court. 3. Be that as it may, the petitioners were not selected for the posts of Lecturers. 32 candidates whose recommendation was made by the Public Service Commission stand appointed as Lecturers. It seems that the respondents operated the waiting list for anticipated vacancies which had become available during the process of selection. 4. The grievance of the petitioners is that the respondents cannot operate waiting list, as all the 32 vacancies referred to the Public Service Commission had been filled. There was no vacancy left unfilled on which the waiting list could be operated. The appointments made on the basis of anticipated vacancies could not have been made without issuance of fresh advertisement notice. The appointments so made had deprived the petitioners of their right to be considered for appointments to such vacancies. This is in nut shell grievance of the petitioners. 5. The appointments made on the basis of anticipated vacancies could not have been made without issuance of fresh advertisement notice. The appointments so made had deprived the petitioners of their right to be considered for appointments to such vacancies. This is in nut shell grievance of the petitioners. 5. The respondents on the other hand claim that the waiting list was operated on basis of the opinion of the Law Minister. They also placed reliance on directions issued by the Division Bench of this Court in SWP No. 1259/99. The order of this court pertains to the operation of waiting list in the subject of `English. The decision to appoint 25 candidates out of the waiting list was not done on the analogy of direction issued hereinabove. Reply affidavit also states that filling of some posts of Lecturers in Zoology out of wait list was referred to the Law Department in August 2001. Following opinion was received from the Law Department: "Thus, the appointment of any candidate against any future vacancy is per se bad in law, being ultra virus the Constitution viewed in the context of the law as so pronounced by the Apex Court, the vacancies which are now available with the Department shall have to be advertised so that other eligible candidates get a fair and equal opportunity to compete at such selection. The candidates figuring in the waiting list can also compete with other eligible candidates and they have no right of consideration for appointment against any future vacancy". The latest opinion of the Law Department clearly envisages that any vacancy which was not advertised has to be referred for fresh advertisement and the applications are invited from the eligible candidates. 6. I have heard learned counsel for the parties and perused the record. There is no dispute that only 32 vacancies were referred to the Public Service Commission by the Administrative Department. All the 32 vacancies have been filled and appointments were made in pursuance to the recommendations of the Public Service Commission. The waiting list prepared by the Public Service Commission would operate only, if any vacancy was left unfilled. The waiting list could be operated only against 32 posts for which advertisement was issued. The decision of the respondents to operate the waiting list against the anticipated vacancies was perse bad in law. The waiting list prepared by the Public Service Commission would operate only, if any vacancy was left unfilled. The waiting list could be operated only against 32 posts for which advertisement was issued. The decision of the respondents to operate the waiting list against the anticipated vacancies was perse bad in law. The said waiting list was to remain in force for a period of one year. The advertisement notice indicates that only 32 posts have been referred to the Public Service Commission for appointments. It did not include any anticipated vacancies, which clearly means the requisition was only for 32 posts. The recruitment initiated by the Public Service Commission could be for only 32 suitable candidates. The Public Service Commission may by abundant caution prepare a waiting list as per their inter se ranking on merits. But such a merit list will have a maximum life of one year from the date of publication or till all the required appointments are made whichever event happened earlier. The moment the 32 posts were filled, the list gets exhausted. After the selection of 32 candidates the list had exhausted. There was no waiting list existing in the eye of law, after 32 candidates were selected and appointed. Any appointments against the anticipated vacancies could be made only after the posts were advertised afresh. 7. In essence, it required initiation of fresh recruitment process, giving fresh opportunity to all the open market candidates to compete. I, fortify my view with the judgment passed in Madan Lal V. State of J&K reported in A.I.R. 1995 SC 1089: "A mere look at the rule 41 shows that pursuant to the requisition to be forwarded by the Government to the Commission for initiating the recruitment process, if the Commission has prepared merit list and waiting list of selected candidates such list will have a life of one year from the date of publication in Government Gazette or till it is exhausted by the appointment of candidates, whichever is earlier. This means that if requisition is for filling up of 11 vacancies and it does not include any anticipated by the Commission could be for selecting 11 suitable candidates. The Commission may be abundant caution prepare a merit list of 20 or even 30 candidates as per their inter se ranking on merits. This means that if requisition is for filling up of 11 vacancies and it does not include any anticipated by the Commission could be for selecting 11 suitable candidates. The Commission may be abundant caution prepare a merit list of 20 or even 30 candidates as per their inter se ranking on merits. But such a merit list will have a maximum life of one year from the date of publication or till all the required appointments are made whichever event happened earlier. It means that if requisition for recruitment is for 11 vacancies and the merit list prepared is for 20 candidate, the moment 11 vacancies are filled in from the merit list the list gets exhausted, or if during the span of one year from the date of publication of such list all the 11 vacancies are not filled in, the moment the year is over the list gets exhausted. In either event, thereafter, if further vacancies are to be filled in or remaining vacancies are to be filled in, after one year, a fresh process or recruitment is to be initiated giving a fresh opportunity to all the open market candidates to compete. This is thrust of rule 41." 8. Analyzing the import of aforementioned judgment, it clearly transpires that the advertisement notice did not make mention that in addition to the identified posts, anticipated vacancies which may arise during this period would also be filled in the same selection process. The stand of the respondents in reply affidavit also does not disclose this fact. 9. In view of the, above discussion it is manifestly clear that all the appointments of private respondents was made without following the regular process of recruitment. Respondents were required to advertise the vacancies against which the appointment of private respondents was made and allow all the candidates in the open market to compete, this has not been done. This view is no longer res-integra that any appointments made dehorse the rules and in violation of the Article 14 and 16 of the Constitution, cannot be sustained. Such appointments suffer from an illegality striking at the root of the appointments. Compliance with the Article 14 and 16 of the Constitution is a mandatory requirement and any appointments made in violation of Article 14 and 16 of the Constitution would be void and nullity. Such appointments suffer from an illegality striking at the root of the appointments. Compliance with the Article 14 and 16 of the Constitution is a mandatory requirement and any appointments made in violation of Article 14 and 16 of the Constitution would be void and nullity. The Supreme Court has consistently held that, where the nature of the illegality strikes at the root of the appointments, such selection cannot be sustained. Reliance is placed upon the judgment titled Satchidananda Misra v. State of Orissa & Ors. reported in (2004) 8 Supreme Court Cases 599: "Admittedly the provisions of the 1979 Rules were not followed and the appointments made in 1980 were after the said Rules had been enforced. The Selection Board comprising of a member of OPSC as its Chairman was never constituted, and the selections were sought to be made by the Board constituted under the 1973 Rules. This was an illegality which struck at the root of the appointment and, therefore, it was beyond the scope of the legislature to validate such illegal appointments as any such attempt would violate Article 14 and 16". 10. While agreeing with the observation of the judgment reported in (1972) 1 SCC 409, titled R.N. Nanjundappa v. T. Thimmiah & Anr. The Court says: "If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment." 11. This view has been affirmed by the Supreme Court in case, titled, Inderpreet Singh Kahlon & Ors. v. State of Punjab & Ors. reported in (2006) 11 Supreme Court Cases 356, wherein the Supreme Court has observed as under:- "The appointment made in violation of Article 14 & 16 of the Constitution would be void and nullity." 12. The present selection cannot be saved as the nature of the illegality is at the root of the appointments. The private respondents have been appointed without resorting to regular process of recruitment. 13. The present selection cannot be saved as the nature of the illegality is at the root of the appointments. The private respondents have been appointed without resorting to regular process of recruitment. 13. I, therefore, set aside the selection of the private respondents and direct the official respondent to notify the vacancies through Public Service Commission within a period of four weeks from the date a copy of this order is provided to the official respondent. The Public Service Commission thereafter would complete the selection process within a period of next two months. On receipt of the recommendations from the Public Service Commission, official respondent would make appointments within a period of one month thereafter. Since the private respondents have been continuing as Lecturers, they shall be allowed to continue for a period of four months. Both petitioners and private respondents shall be allowed to participate in the selection process. In case any one of them is found to be barred by age, the official respondent is directed to consider such case for necessary relaxation of the age. Disposed of alongwith connected CMP (s), if any.