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J&K High Court · body

2010 DIGILAW 657 (JK)

Sanjeev Kumar Sharma v. State

2010-12-31

Sunil Hali

body2010
1. Common questions of fact and law are involved in all these petitions, therefore, same are being disposed of by the common order. 2. The Government Vide Order No.42-GAD of 2006 dated 09.01.2006, directed filling up of 50% Class IV posts available in the districts or the balance posts after accounting for the pending (militancy related) SRO 43 cases whichever is more, shall be filled through a duly constituted Committee headed by the concerned Deputy Commissioners. In pursuance to aforesaid Government Order, the process for making selection to Class IV posts was set in motion by the Committee duly constituted by the Government headed by the concerned Deputy Commissioners. Said committee was constituted vide Order No. 43-GAD of 2006 dated 09.01.2006 consisting of four members. 3. The petitioners being eligible had also applied for Class-IV posts in District Kathua. The process of selection initiated by the Committee is stated to have been concluded, as a result of which, it is contended by the petitioners that the select list was prepared in this behalf on 31.03.2007. The petitioners figured in the said select list. It is further contended that in pursuance to the publication of the general select list, select lists of different districts was also published on the same date. Order dated 31.03.2007 indicates that sanction was accorded for temporary appointment of the candidates in various departments for Class IV in pursuance to the select list. After publishing of the select list, appointments orders are stated to have been issued as contended by the petitioners. However, no steps were taken by the respondents to have the said orders issued to the selectees. 4. What is being contended by the petitioners is that not only the selection process was concluded but appointment orders were also notified and the same have not been communicated to the selectees. Ever since then, the said process has been withheld by the respondents. According to them they have indefeasible right for appointment as the selection process has been concluded by the selection committee constituted in this behalf. 5. On the other hand, the stand of the learned Advocate General appearing for the State-respondents is that no select list was ever published nor any appointment orders were issued. According to them they have indefeasible right for appointment as the selection process has been concluded by the selection committee constituted in this behalf. 5. On the other hand, the stand of the learned Advocate General appearing for the State-respondents is that no select list was ever published nor any appointment orders were issued. He further contends that even if the select list has been issued and appointment orders notified, even then until and unless said orders are communicated to every candidate, it cannot be said that they have any indefeasible right to be appointed. His further contention is that there is no right of appointment. Government can refuse to make appointments, of course, subject to certain reasons, which are required to be disclosed. 6. I have heard learned counsel for the parties and perused the record. 7. The area of controversy is confined only to a limited extent as to whether State can refuse to make appointment after the Selection Committee has concluded the selection process and issued the select list. 8. To examine the issue in the present context what is being stated by respondent no.4, who was Chairman of the Selection Committee, was that the select list was prepared and appointment orders were notified. However, the same were not communicated and dispatched to the selectees. Before appointment orders could be communicated, the same were kept on hold. According to the affidavit filed by respondent no.4, it is alleged that certain oral complaints are stated to have been received by the Deputy Commissioner regarding the manner in which selection was made. However, it is admitted that there is no written complaint pending before the Deputy Commissioner, in this regard. 9. Coming to the issue as to whether State can withhold the appointments. In the present context what is being stated is that on account of some oral complaints received by the Deputy Commissioner, the appointment orders were kept on hold. Nothing has been disclosed to this Court about the fate of such inquiry, if any, conducted in this behalf. As a matter of fact no inquiry, as such, has been initiated in this behalf by the respondents. 10. Nothing has been disclosed to this Court about the fate of such inquiry, if any, conducted in this behalf. As a matter of fact no inquiry, as such, has been initiated in this behalf by the respondents. 10. The stand of the respondents that the petitioners have no right to claim that they have indefeasible right of appointment, has to be broadly understood on two aspects:- (a) That State can refuse to make appointments but while doing so they are required to communicate the reasons; and (b) That in case there is a reason for withholding of such appointment, decision taken on such reasoning is required to be examined by the Courts. The exparte and unilateral decision taken by the State in this behalf, cannot be accepted. 11. Analyzing this submission, it be seen that the respondents have admitted that the appointments have been kept on hold on account of some complaints having been received by respondent no.4 against the selection process. This could have been a good reason provided some inquiry was initiated in this behalf and the result of such inquiry would determine the fate of the selected candidates. Except stating that the complains have been received, there is nothing on record which could show that the fairness in the selection process has been reviewed and decision has been taken with regard to the complaints so received. The matter rests as it was at the time when the select list was issued. It can safely be stated that this reasoning of the State-respondents is falsified by their own conduct as no such inquiry has been initiated in this behalf. 12. Having said so, is it still open to the State to withhold the appointment orders of the petitioners. Reliance has been placed by the learned Advocate General in case Shankarsan Dash v. Union of India reported in AIR 1991 SC 1612 , wherein their lordships have made the following observations :- "It cannot be said 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. 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 bonafide 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 to discrimination can be permitted." 13. The import of the aforesaid judgment is that a candidate on his selection does not acquire any right to the post. State is under no obligation 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 in withholding the selection. It has to give reasons while not making appointments after the selection process is concluded. Applying this principle to the case in hand, it be seen that no reason has been indicated by the respondents for withholding the selection made in the year 2007. Learned counsel for the petitioners has placed reliance on the judgment of the Apex Court in R.S. Mittal v. Union of India reported in 1995 Supp(2) SCC 230 wherein their lordships have held as under :- "Although a person on the select panel has no vested right to be appointed to the post for which he has been selected, the appointing authority cannot ignore the select panel or on its whims decline to make the appointment. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reasons, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reasons, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to the candidate at SI. No.1 of the select list within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government’s approach in this case was wholly unjustified." 14. In fairness to the learned Advocate General, he frankly stated that no such complaints have been probed and the appointments of the petitioners is on hold for which no final decision has been taken by the respondents as yet. He, however, made an attempt to indicate that FIR has been lodged against the petitioners for procuring the select list and appointment orders which were never published or notified. The select list was kept in a sealed cover by the Selection Committee and the said select list has been procured by the petitioners illegally. The Investigating Agency is probing the matter in this behalf. However, the pendency of this investigation has no relevance in the present context. There is no investigation pending regarding the mode and manner in which the selection has been effected. 15. Other contention raised by the learned Advocate General is that the appointment will take effect only from the date, orders of appointment are communicated to the selected candidates. Mere publication and notifying would not give effect of appointments. The contention of learned Advocate General cannot be contested on this count. However, issue still remains as to why the appointment orders have not been issued in favour of the petitioners. 16. From the aforesaid discussions, it clearly emerges that the selection of the petitioners had culminated into issuance of appointment orders but the same were not communicated to them. No reasons are visible from the record or from the stand of the respondents that appointment orders of the petitioners withheld for a period of more than three years were based on some justifiable reasons. This itself speaks that duly selection process has been subverted by the respondents. One does not go into the motive and reasons for the same but the fact remains that the action of the State is per se arbitrary. 17. This itself speaks that duly selection process has been subverted by the respondents. One does not go into the motive and reasons for the same but the fact remains that the action of the State is per se arbitrary. 17. In view of the above, this petition is allowed. The respondents are directed to issue appointment orders in favour of the petitioners within a period of one month from today. The respondents shall also submit the compliance report before this Court by or before 15.02.2011. Index of the file shall be maintained and listed on 21.02.2011. Disposed of along with connected CMP (s).