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2011 DIGILAW 572 (JK)

Sakina Rashid (Baby) v. State

2011-10-24

Hasnain Massodi

body2011
1. Heard Admit Notice. 2. Mr. Alla-Uddin Ganai Dy. Advocate General, waves post admission notice on behalf of the respondents. Reply already filed at the request of learned Counsel is treated as counter Affidavit. Mr. M.A. Qayoom does not intend to file any Rejoinder. 3. The petition on consensus is taken up for final disposal. 4 The petitioner claims to have responded to advertisement notice No. 10 of 2008 dated 30.07.2008, whereby the applications were invited by J&K Service Selection Recruitment Board-respondent No. 2 herein, from eligible candidates for vacant posts of Junior Engineers (Civil) in the Public Works (Roads and Buildings) Department of J&K Government. The list of selected candidates and all the candidates in waiting list issued by the respondent No. 2 and published in a daily local on 10th June 2009, included the petitioner at S. No. 16 in the waiting list. 5. The petitioner's case is that the respondent No. 1 vide Government order No. 321 --PW(R&B) of 2009 dated 16.12.2009 cancelled the appointment of 11 candidates who failed to report with their testimonials within the prescribed time and picked up 10 candidates from Open Merit category and 1 candidate from ALC category in-waiting list for appointment against the positions left vacant because of aforementioned cancelation. It is next pleaded, that the two candidates shown at S. No. 7 and 83 namely Miss. Ruksana Mir and Shri Shujat Hussain also had to opt out as candidate at S.No. 7 was not full filling the eligibility criteria on the relevant date and the candidates at S.No. 83 submitted his resignation on 31st. October 2009, that was duly forwarded by his superior officer to the competent Authority. The respondents, according to the petitioner appointed candidate figuring at S.No. 12 in the waiting list namely Nasim Ahmad Kabli on cancellation of appointment of one Tajamul Ahmad Tramboo shown at S.No. 3 in the select list and that similarly selected candidates shown at S.No. 2, 9, 14 and 20 on their appointment as Assistant Engineers vide Government order No. 129-PW (Hyd) of 2010 dated 25.03.2010 put in their papers as Junior Engineers. The petitioner's case is that with the exit of aforementioned four selected/appointed candidates, the total number of candidates whose appointment were cancelled or who did not full fill the eligibility criteria on the relevant date, or resigned from the post to pursue further studies a total of 16 vacancies became available to the respondents to be filled up from the waiting list. It is urged that the respondents cannot operate the waiting list selectively and after having appointed 12 candidates from the waiting list, the respondents cannot deny consideration to the petitioner unmindful of the fact that 4 more vacancies have become available within one year of the issuance of select list. 6. The respondents in their reply have admitted that 11 candidates though included in the select list did not join and that the said posts were offered to the candidates shown in the waiting list and appointments made vide Government order No. 321-PW(R&B) of 2009 dated 16.12.2009. It is also admitted that one more candidate was appointed on failure of Shri Tajamul Hussain Trambooo included in the select list to take up the job. The respondents while admitting that 4 of the selected candidates were subsequently appointed as Assistant Engineers on their selection by the Public Service Commission, insist that the 4 vacancies are "future vacancies" and not to be offered to the candidates shown in the waiting list. The respondents deny that Miss Ruksana Mir shown at S. No. 83 in the Government order No. 203/PW dated 17.09.2009 did not full fill the eligibility criteria. It is insisted that the candidate satisfied the eligibility criteria and was duly selected and appointed as Junior Engineer. The respondents have not taken a definite stands as regards resignation of Shri Shujat Hussain to pursue M. Tech. Course and insisted that the averment was a matter of record. It is reiterated that the positions left vacant due to resignation of the selected candidates are "future vacancies" not to be filled up from amongst the candidates shown in the waiting list, but to be thrown open to all eligible candidates. 7. I have heard Counsel for the parties have gone through the relevant record available on file. 8. The admitted facts need to be revisited in order to zero in on the real controversy involved in the present case. 7. I have heard Counsel for the parties have gone through the relevant record available on file. 8. The admitted facts need to be revisited in order to zero in on the real controversy involved in the present case. It is admitted case of the parties that the petitioner responded to the advertisement notice No. 10 of 2008 dated 30.07.2008 and on the strength of her merit and performance in the test found place at S.No. 16 in waiting list. It is also admitted that the select list was notified on 10th June 2009 and was to survive for a period of one year i.e. till 10th June 2010. There is no disagreement between the parties that 11 of the selected candidates in the Open Merit category and one candidate in ALC category did not join and that 11 candidates, from the waiting list in Open Merit category and one candidate from waiting list in ALC category were appointed against the vacancies that remained unfilled due to non joining of the selected candidates. It is further admitted that 4 of the selected candidates resigned after their selection by the Public Service Commission as Assistant Engineers. The petitioner insists that the vacancies that became available because of resignation of the 4 candidates are to be filled up from waiting list. The plea is resisted by the respondents on the ground that the aforesaid vacancies are "future vacancies" and are to be filled up by setting into motion the selection process in accordance with rules. 9. It is no more res-integra that once appointments are made pursuant to the recommendations made by the `authority' saddled with the responsibility to make the selection, the selection process is complete, even where such `authority' has submitted a waiting list. However the selection process is not to be taken as complete on mere issuance of appointment orders based on the recommendations of prescribed Authority but only after a selected candidate in compliance of the appointment order submits his joining report in accordance with the procedure detailed in his appointment order and he is found to have academic and other testimonials to his credit that make him eligible for the appointment. There may be instances when the appointment order may be issued in favour of a selected candidate and the candidate asked to report along-with his original testimonials/certificates within the prescribed period and on verification such one or more certificates may be found not to be genuine or the candidate though appointed may not report within prescribed time having already found some other job and not willing to take up the appointment. In such cases though the appointment orders are issued, the selection process is not complete as selected candidate has either not joined or is found not having the qualification or experience prescribed for the post. All such unfilled posts are to be filled up by making the waiting list operational. However, once an appointed candidate reports within the prescribed time with his testimonials and joins the duty and thereafter for one or the other reason puts in his papers or resigns the post that became available is a "future vacancy" and cannot be filled up from the waiting list, that has ceased to exist once the selection process is complete. Guidance in this regard may be sought from laid down in State of Punjab v. Raghubir Singh 2002 (1) SCC 113 followed in Ranu Balla v. State LPA (SW) No. 46/2010 decided on 24.03.2011 & Javeed Ahmad Ganai & Anr. v. State & Ors. LPA No. 100/2011 & LA (c) No. 163/2011 decided on 24.05.2011. The petitioner thus cannot lay claim for her appointment against any of the posts that became available due to resignation of S/Shri Irfan Ahmad Dar, Nisar Ahmad Dar, Afroz Ahmad Rather and Sunil Sharma in wake of their selection and appointment as Assistant Engineers. 10. The plea that Ms. Ruksana Mir being not eligible on the prescribed date, her selection is bad and that the post likely to become available on her deletion from the select list as also the post that become available due to resignation of Shri Shujat Hussain, does not in any manner brighten up the petitioner's case. Even if the two posts fell vacant and could be made use of by the respondents to operate the select list still the petitioner having regard to her S.No. in waiting list would not be benefitted by such an exercise undertaken by the respondents. 11. This apart, the plea that a post of Junior Engineer due to ineligibility of Ms. Even if the two posts fell vacant and could be made use of by the respondents to operate the select list still the petitioner having regard to her S.No. in waiting list would not be benefitted by such an exercise undertaken by the respondents. 11. This apart, the plea that a post of Junior Engineer due to ineligibility of Ms. Rukhsana Mir was available to be filled up from the waiting list is not tenable for the reason that the petitioner has not impleaded Miss. Ruksana Mir as a party/respondent to the writ petition so as to allow her to contest the claim made by the petitioner. Furthermore, the plea does not find support from the reply filed by the respondents who insist that Miss Ruksana Mir was eligible and validly selected and thereafter appointed as Junior Engineer. The resignation attributed to Shri Shujat Hussain is neither confirmed by the respondents nor would be the post left vacant because of claimed resignation, made use of by the respondents to operate the waiting list as the vacancy would be a "future vacancy" not to be filled up from the waiting list. 12. For the reasons discussed above the claim set up by the petitioner is not sustainable. The petition is bereft of merit and is accordingly dismissed along-with all connected CMP's. interim direction, if any, shall stand vacated.