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2012 DIGILAW 361 (JK)

State of J&K and Anr. v. Rajesh Khajuria and Ors.

2012-07-04

MUZAFFAR HUSSAIN ATTAR, VIRENDER SINGH

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Muzaffar Hussain Attar Writ petitions were disposed of by common judgment by the learned Single Judge. As the issues involved in these LPAs are identical, same are being disposed of by this common judgment. In order to appreciate the controversy raised, facts as are given in the LPAs are briefly summarized as under: J&K Public Service Commission (PSC) issued notification No. 14-PSC of 1997 dated 01st August 1997 and notification No. 29 PSC of 1997 dated 31st December 1997 wherein and whereunder applications were invited from the eligible candidates seeking consideration for being selected and appointed on the post of Lecturer in the Higher Education Department in different disciplines including that of Mathematics. Selection process culminated in making recommendations in favour of the selected candidates for being appointed on the post of Lecturer in the discipline of Mathematics in Higher Education Department on 18th of September 2000. Nine candidates were selected in Open Merit Category, two in RBA category, one in Scheduled Tribe Category and one in ALC category. Nineteen persons were placed in waiting list in Open Merit category, four in RBA category, two in Scheduled Tribe category and two in ALC category. Respondents- writ petitioners figured in waiting list. Writ petitions were filed by the writ petitioners-respondents. The first writ petition SWP No. 3028/2001 was filed on 12/12/2001 and other writ petitions were filed after that date. Learned writ court disposed of the writ petitions by common judgment dated 26.7.2002 whereunder appellants were directed to consider the claim of the petitioners for their appointments. Appellants, being aggrieved of the judgment of the learned Single Judge, have challenged the same in these LPAs. Learned counsel for the appellants submitted that no reasonable opportunity was granted by the learned writ court to file the objections. Learned counsel further submitted that writ petitions have been disposed of without being admitted to hearing and without affording an opportunity to the appellants to file counter affidavit/reply affidavit. Learned counsel submitted that the select list was published/recommendations were made on 18th September 2000 and its life expired on 17th September 2001, inasmuch as, select list including that of waiting list remains in operation for one year from the date of its publication. Learned counsel submitted that the judgment impugned, in these appeals, being illegal, deserve to be set aside. Learned counsel submitted that the judgment impugned, in these appeals, being illegal, deserve to be set aside. Learned counsel for the respondents-writ petitioners submitted that the judgment is well reasoned and is in accordance with law and does not call for any interference. Learned counsel submitted that appellants have made appointments of the candidates in other disciplines even after the expiry of validity period of the select list. In this behalf reference was made to the Government Order No. 18-HE of 2003 dated 31.01.2003. Learned counsel accordingly submitted that appellants cannot discriminate the writ petitioners-respondents and are duty bound to give same treatment, which has been given to the persons, who are beneficiaries of the aforementioned Government order. Before dealing with the submissions made at the bar, it is deemed appropriate to state that operation of the impugned judgment has been stayed by the court vide its order dated 10th February, 2003. It will also be appropriate to refer to the facts of the case which resulted in passing of Government Order No. 18- HE of 2003 dated 31.01.2003. Twenty three and thirty two posts of Lecturers in Higher Education Department in open merit category in the discipline of Botany and Zoology respectively were advertised by the J&K PSC in the year 1997. Vide letter dated 21.08.2000, PSC made recommendation to the Government for appointment of the candidates, against notified posts, who figured in the select list. Waiting list was also prepared in both the disciplines. Select list in terms of Rules of the PSC had to remain valid upto 20.08.2001. Perusal of the aforementioned Government order revealed that after appointing the candidates from the select list, waiting list was utilized under all the categories to the extent posts were available and these appointment were made within validity period of the select list. Waiting list in general category was utilized upto serial No. 12 and 15 in Botany and Zoology respectively by utilizing all the available posts in both the disciplines. Four posts of Lectures, two each for Botany and Zoology were created vide Govt. Order No. 172-HE of 2001 dated 26.6.2001 and Govt. Order No. 201-HE of 2001 dated 16.7.2001 for Degree College, Kishtwar and Doda. A proposal was mooted for filling up of these newly created posts from amongst candidates available in the waiting list dated 21.08.2000. Four posts of Lectures, two each for Botany and Zoology were created vide Govt. Order No. 172-HE of 2001 dated 26.6.2001 and Govt. Order No. 201-HE of 2001 dated 16.7.2001 for Degree College, Kishtwar and Doda. A proposal was mooted for filling up of these newly created posts from amongst candidates available in the waiting list dated 21.08.2000. The matter was referred to the State Law Department for its opinion. State Law Department opined that these posts, being future vacancies, cannot be filled up by falling back upon the waiting list of earlier selection process. It was further opined that these vacancies shall be advertised. The persons aggrieved of the opinion of the State Law Department filed SWP No. 1890/2001, which was allowed by the court vide order dated 27.03.2002. The other candidates filed SWP No. 2020/2001 in which interim orders were passed by the Court on 03.09.2001. The opinion of the Law Department was sought, which in turn referred to its earlier opinion and asked the Higher Education Department to file LPAs against these orders. LPAs were filed beyond period of limitation. Contempt applications were filed. Warrants were issued against the Principal Secretary, High Education Department. Faced with this situation, statement was made before the Court that the judgment/orders will be implemented. Govt. order No. 18-HE of 2003 31.1.2003 was issued under the pain of the contempt. Since the judgments were implemented LPAs were withdrawn. Facts which are admitted and which are not disputed in the impugned judgment are that the select list in the discipline of Mathematics for the post of Lecturer in Higher Education Department was issued and recommendations were made in favour of the selected candidates for their appointment to the competent authority on 18th September 2000. The select list had to remain valid for a period of one year. The validity of the select list expired on 17th September, 2001. The first writ petition, admittedly, was filed on 12.12.2001 and other writ petitions out of which the LPAs have arisen were filed thereafter. Admittedly, writ petitions were filed after the life of select list/waiting list had expired. Respondents-writ petitioners, in these circumstances, had no right in law to seek direction for operating a non existing waiting list. Learned Single Judge in the impugned judgment has referred to two judgments reported in (1999) 3 SCC 696 titled Virender S. Honda and ors. Admittedly, writ petitions were filed after the life of select list/waiting list had expired. Respondents-writ petitioners, in these circumstances, had no right in law to seek direction for operating a non existing waiting list. Learned Single Judge in the impugned judgment has referred to two judgments reported in (1999) 3 SCC 696 titled Virender S. Honda and ors. v. State of Haryana and anr. and AIR 2000 SC 1097 titled State of U.P v. Ram Swarup Saroj. The ratio of these judgments presumably has been applied to the case for the reason that the select list dated 18.09.2000 was challenged before the court and interim order was passed by the Court on 18.12.2000, which as per the judgment of the writ court was vacated on 16.5.2001 by the learned Single Judge and finally by the LPA Bench on 4.09.2001. What appears from the paragraph 2 of the impugned judgment is that select list was challenged by some aggrieved persons and interim orders were passed. Perusal of the annexures N and O of the writ record of SWP No. 3028/2001 titled Rajesh Khajuri and ors. v. State of J&K And ors. would show that on 18.12.2000 in CMP No. 2464/2000, Court had directed that till the reply is filed, respondents will not process the case of any of the person over and above the number shown in the notification to which this case related. On 16.5.2001, court gave liberty to the respondents to complete the selection process strictly in accordance with the norms provided. It was further provided that selection, so made, shall be subject to the decision of the writ petition. On 4.09.2001, LPA Bench dismissed the LPA filed against the said order. What appears from these orders is that select list or appointment of the candidates was not stayed. In the aforementioned facts now it is to be ascertained whether the law laid down by the Hon’ble Supreme Court in the above referred two judgments would be applicable to the facts of these cases. What appears from these orders is that select list or appointment of the candidates was not stayed. In the aforementioned facts now it is to be ascertained whether the law laid down by the Hon’ble Supreme Court in the above referred two judgments would be applicable to the facts of these cases. In the case reported in (1999) 3 SCC 696 , the Hon ble Supreme Court ruled that when a policy has been declared, as to the manner of filling up of the post and that policy is declared in terms of the rules and instructions issued from time to time, and so long as these instructions are not contrary to the rules, respondents ought to follow the same. The administrative instructions were issued which permitted appointments to be made against the vacancies which were likely to arise in six months time from the date of initiation of the selection process. In this case, no such administrative order or instruction has been issued as same has not been brought on record. In this case, select list expired when the writ petitions were filed by the respondents-writ petitions seeking enforcement of the waiting list. On facts, the case reported in (1999)3 SCC 696 is not identical. In another case of which reliance has been placed by the learned Single Judge reported in AIR 2000 SC 1097 , it was ruled by the Hon ble supreme Court that merely because of the one year has elapsed during the pendency of litigation, we cannot decline to grant the relief to which the respondent has been found entitled to by the High Court. In that case during the currency and validity of the select list, the writ petition was filed. In this case, writ petitioners-respondents admittedly have filed writ petitions after the expiry of the select/waiting list. Writ petitions were filed by some aggrieved persons, wherein select list was challenged, court had not stayed the select list, but had only directed that the authorities will not process the case of any person over and above the number shown in the notification to which the case related. The authorities were, thus, restrained not to process the case of any person beyond the notified number of posts. The selection process continued without any interference. These judgments are not applicable to the facts of these cases. The authorities were, thus, restrained not to process the case of any person beyond the notified number of posts. The selection process continued without any interference. These judgments are not applicable to the facts of these cases. Respondents-writ petitioners right extinguished when the period of one year from the date of publication of the select list/recommendations of the PSC expired. Admittedly, writ petitions were filed after the expiry of the select list. In law, there was nothing available to the respondents-writ petitioners on which they could fall back upon for sustaining their claims. The reference made to Government Order no. 18-HE of 2003 dated 31.1.2003 is of no assistance to the writ petitioners-respondents as the orders were passed under the pain of the contempt. The aforementioned Govt. Order, in law, cannot become basis for extending similar benefit to the writ petitioners- respondents. Even on facts posts were created subsequent to the completion of the selection process and they were proposed to be filled up by falling back up the waiting list of the earlier selection process. In view of the settled legal position, respondents-writ petitioners cannot seek any benefit from the said order. Withdrawal of the appeals by the appellants therein is of no consequence and of no help to the writ petitioners-respondents. Article 14 of the Constitution of India is possessed of positive traits. No benefit can be derived from an order which is passed under the pain of contempt. For the above stated reasons, we find merit, in these appeals, which are accordingly allowed. Impugned judgments are set aside and consequently writ petitions stand dismissed.