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2013 DIGILAW 549 (JK)

Kalpna Jasrotia v. State Of J&K

2013-09-13

TASHI RABSTAN

body2013
1. Commissioner/Secretary to Government, Higher Education Department, J&K Government-respondent no. 1 in the petition, vide No. Edu-coll/coord/PSC/ Lecturer/ 2009 dated 2nd February 2009, referred 08 posts of Lecturer in the Discipline of Commerce in Higher Education Department, to J&K Public Service Commission - respondent no. 2. Amongst these posts, 04 posts were kept reserved for Open Merit; 02 posts for Reserved Backward Area; 01 post for Scheduled Caste; and one post for Scheduled Tribe. 2. Respondent no.2 vide Notification No. 06-PSC of 2009 dated 6th March 2009, amongst others, advertised above 08 posts of Lecturer Commerce, to which respondent Commission received 76 application forms. Out of which, 56 candidates were called for interview:. In addition to that, five candidates were interviewed on the basis of Court direction. The interview for 08 posts of Lecturers Commerce was conducted at Jammu with effect from 18.01.2010 to 20.01.2010. Consequent upon the interview, respondent Commission vide No. PSC/DR/ HE/Lecturer/Commerce /2009 dated 27th January 2010, recommended only six candidates to be appointed as Lecturer in Commerce Discipline out of eight advertised posts referred to it by respondent no.1. 3. Vide Government Order No. 97-HE of 2010 dated 03.03.2010, six candidates, selected/recommended by respondent Commission, were appointed as Lecturers in Commerce Discipline. However, two candidates namely Mushtaq Ahmad Lone son of Abdul Ahad Lone resident of Ushkara Baramulla and Ms. Gagan Jyoti daughter of Harbans Lal resident of Plot No. 24, Opp. Singh High School Resham Garh Colony, Jammu, did not join the duties as Lecturer. As a consequence thereof, vide Government Order No. 420-HE of 2010 dated 14.12.2010, the appointment of above two candidates was cancelled. 4. Petitioner, who has done Post Graduation in the Discipline of Commerce in the year 1989 and Doctorate of Philosophy in the subject of Commerce as also Bachelor of Education (B.Ed), is working as 10 + 2 Lecturer since 1995. According to her, being eligible, she as well responded to Notification No. 06-PSC of 2009 dated 6th March 2009, for the post of lecturer in Commerce Discipline and appeared in the interview. She did not found place in the Select List issued by respondent Commission. 5. Petitioner's case is that one candidate, who had also applied for the post of Lecturer in Commerce Discipline, upon being not selected, approached respondent no. She did not found place in the Select List issued by respondent Commission. 5. Petitioner's case is that one candidate, who had also applied for the post of Lecturer in Commerce Discipline, upon being not selected, approached respondent no. 2 under Right to Information Act, seeking details of selection/merit position of the candidates, who had applied for the post of Lecturer in Commerce Discipline. The information so provided by respondent Commission, includes a List, detailing General Bio Data of 56 candidates, who had applied for the post of Lecturer Commerce in Higher Education Department, in which name of petitioner figures at Serial No. 16 with 54.51 points. The petitioner's further case is that she was not considered by respondents notwithstanding the cancellation of appointment of two candidates, who had not joined the post of Lecturer Commerce whereas respondents have considered and appointed one Ms. Revika Arora, though Lecturer in Chemistry Discipline, who was a candidate next in the merit list for appointment against drop out vacancies. 6. The petitioner, aggrieved of non-consideration at the hands of respondents, has come up with the writ petition on hand on the grounds that in the event of non-joining of candidate - Mushtaq Ahmad Lone, within the stipulated period of 21 days and subsequently upon cancellation of his appointment, respondents were required to consider her on the post of Lecturer Commerce as she being next in the merit and number one in the waiting list. It is insisted that respondent no.1, after cancellation of appointment order of above Musthaq Ahmad Lone, was required to seek recommendation from respondent no.2 of the next candidate in the merit list/waiting list inasmuch as respondent no.2 is to maintain waiting list as per Rule 57 of the Jammu and Kashmir Public Service Commission (Business and Procedure) Rules. It is contended that once respondents have followed this procedure/rule in case of Ms. Revika Arora, they cannot discriminate her. The petitioner, on the basis of case set up, has sought following relief: Writ of Mandamus, commanding respondents to appoint petitioner against the post of Lecturer in Commerce in Higher Education Department with all the consequential benefits from 18.03.2011, the date when similarly situated person (Revika Arora) was appointed. 7. Revika Arora, they cannot discriminate her. The petitioner, on the basis of case set up, has sought following relief: Writ of Mandamus, commanding respondents to appoint petitioner against the post of Lecturer in Commerce in Higher Education Department with all the consequential benefits from 18.03.2011, the date when similarly situated person (Revika Arora) was appointed. 7. Respondent no.1, in his Reply, opposed the writ petition on the ground that as per procedure, appointments against Gazetted posts in Government service are made after selection process is completed by respondent Commission pursuant to reference of vacancies to it and after receipt of Select List from it. It is averred that a Select List remains operative and valid for one year and that in the present case, pursuant to reference of vacancies of Lecturers in Commerce Discipline, respondent Commission vide letter dated No. PSC/DR/HE/Lecturer/Commerce/2009 dated 27.01.2010, sent a Select List and after receipt thereof, appointment orders were issued. It is pleaded that appointment of two candidates was cancelled as they did not join the service and copy of cancellation order was duly endorsed to respondent Commission but no waiting list was communicated by respondent commission. It is contended that petitioner's name was never recommended by respondent Commission to respondent no.1, therefore, issuance of appointment order in favour of petitioner did not arise. It is also averred that the claim of petitioner seeking a direction for her appointment with effect from the date Ms. Revika Arora was appointed, does not merit any consideration inasmuch as Ms. Revika Arora was appointed as Lecturer in Chemistry and not in Commerce Discipline. It is averred by respondent no.1 that the Panel of candidates for appointment the post of Lecturer in Chemistry was sent by the respondent no.2 on 16th October 2009, pursuant to which Government Order No. 319-HME of 2010 dated 30.04.2010 was issued, appointing as many as 32 candidates. It is further averred that out of 23 candidates recommended in the Open Merit category, one candidate did not join, as such, his appointment was cancelled and pursuant to letter No. Edu-Coll-Apptt-Lect-Chem/2009 dated 04.10.2009, respondent no.2 recommended the name of Ms. Revika Arora vide their 30.11.2010. It is contended that after receipt of recommendations, appointment in favour of Ms. Revika Arora as Lecturer Chemistry was issued on 18th March 2011. 8. Revika Arora vide their 30.11.2010. It is contended that after receipt of recommendations, appointment in favour of Ms. Revika Arora as Lecturer Chemistry was issued on 18th March 2011. 8. Respondent no.2, in his reply, states that on 27.01.2010, selection/recommendation was sent to respondent no.1, as such, in terms of provisions of Rule 57 of J&K Public Service Commission (Business and Procedure) Rules, 1980 the validity period of one year has since expired i.e. January 2011. It is also insisted that though petitioner is the next candidate in order of merit but concerned administration department had not intimated/ communicated any vacancy caused in the Discipline due to non-joining of any selected candidate to respondent no.2 or cancellation of order of appointment. It is also averred that as per Rule 57 of J&K Public Service Commission (Business and Procedure) Rules 1980, the Select List is valid for only one year, which is, however, extendable for a further period of six months on specific request of the Government. 9. I have heard learned counsel for the parties, perused the averments made in the petition and Reply and contents of the documents annexed thereto. 10. Jammu and Kashmir Public Service Commission (Business and Procedure) Rules, 1980, govern and regulate the mode, manner and procedure to be followed, adopted and complied with by J&K Public Service Commission while making arrangements for holding of examinations and viva-voce tests, issuance of notifications, inviting applications from the eligible candidates as per the specified qualifications and experience required, to appear in examination or for appointment to a post intended to be filled in by direct recruitment, scrutiny of applications, preparation of select list as also waiting list and announcement and publication of results etc. Rule 57 provides: "57. The decisions of the Commission for making appointment by direct requirement shall subject to the provisions of Rules 9 and 10 be signed by all the members. The recommendations of the Commission shall be communicated to the Government by the Secretary. The recommendations shall be valid for a period of one year from the date they are communicated to the Govt. The validity period of one year can, however, be extended for a further period of six months on specific request of Govt. if the request for such extension is made before the expiry of the validity of the panel. The recommendations shall be valid for a period of one year from the date they are communicated to the Govt. The validity period of one year can, however, be extended for a further period of six months on specific request of Govt. if the request for such extension is made before the expiry of the validity of the panel. Provided that waiting list of candidates may be drawn up by the Commission and communicated to the Govt. along with the original recommendations to the extent to be determined by the Commission in each case. After the recommendations for direct recruitment are communicated to the Govt. the Secretary shall intimate individually to the candidates selected/recommended against clear vacancies the fact of their names having been recommended to the Govt. for appointment. This shall be in Form No. 6. Secretary shall, thereafter, make public the select list and the waiting list by affixing a copy of the same on the Notice Board of the Commission and also by publishing in the Government Gazette. This shall be in form No. 7." 11. Plain reading of Rule 57 of J&K Public Service Commission (Business & Procedure) Rules 1980 provides that J&K Public Service Commission is to draw up Waiting List and communicate the same to Government alongwith the original recommendation and that Secretary of the Commission shall make public both the Select List as well as Waiting List and also publish in Government Gazette. In that view of the matter, in the present case as well respondent Commission was, in terms of Rule 57, required to make public both Select List as well as Waiting List in each case. In the event respondent Commission did not undertake this exercise, the fault thereof cannot be saddled on petitioner. The respondents admit operationalization of Waiting List qua Ms. Revika Arora, who had applied in pursuance of the same advertisement notice, to which petitioner as well had responded. Once respondents have accorded consideration in case of Ms. Revika Arora, the petitioner thus cannot be treated differently. 12. The Supreme Court in State of J&K & Ors. v. Sat Pal [ AIR 2013 SC 1258 ] observed: ".......A waiting list commences to operate, after the vacancies for which the recruitment process have been conducted have been filled up. Once respondents have accorded consideration in case of Ms. Revika Arora, the petitioner thus cannot be treated differently. 12. The Supreme Court in State of J&K & Ors. v. Sat Pal [ AIR 2013 SC 1258 ] observed: ".......A waiting list commences to operate, after the vacancies for which the recruitment process have been conducted have been filled up. In the instant controversy the aforesaid situation for operating the waiting list had not arisen, because one of the posts of Junior Engineer (Civil) Grade-II, for which the recruitment process was conducted, was actually never filled up. For the reason that Trilok Nath had not assumed the charge, one of the posts for which the process of recruitment was conducted, had remained vacant. ... ...........As against the aforesaid, it is the acknowledged position recorded by the appellants in the impugned order dated 23.8.2011 (extracted above), that the waiting list was valid till May, 2008. If Trilok Nath was found eligible for appointment against the vacancy in question out of the same waiting list, the respondent herein would be equally eligible for appointment against the said vacancy. This would be the unquestionable legal position, in so far as the present controversy is involved." 13. The respondents, in their respective Reply, state that the Select List remains operative for one year only. The respondent no.l, in his reply, at Preliminary Objection in Paragraph "C" submits: "C. That the present writ petition is misconceived. The claim of the petitioner seeking a direction for her appointment with effect from the date Ms. Revika Arora was appointed, does not merit any consideration. The factual position is that Ms. Revika Arora was appointed as Lecturer in Chemistry and not in Commerce. Furthermore, the panel of candidates for appointment to the post of Lecturer in Chemistry was sent by public Service Commission on 16.10.2009, pursuant to which appointment in respect of all the 32 selected candidates was issued under Govr. Order No. 319-HE of 2010 dated 30.04.2010. Out of 23 candidates recommended in the open merit category, one candidate did not join. As such his appointment was cancelled and pursuant to communication No. Edu-Coll-Apptt-Lect-Chem/ 2009 dated 04-10-2009, the respondent No. 2 recommended the name of Ms.Revika Arora vide their letter dated 30.11.2010. (Copy of the communication dated 04.10.2010 and 30.11.2010 are annexed herewith as Annexure-RC and RD. Out of 23 candidates recommended in the open merit category, one candidate did not join. As such his appointment was cancelled and pursuant to communication No. Edu-Coll-Apptt-Lect-Chem/ 2009 dated 04-10-2009, the respondent No. 2 recommended the name of Ms.Revika Arora vide their letter dated 30.11.2010. (Copy of the communication dated 04.10.2010 and 30.11.2010 are annexed herewith as Annexure-RC and RD. After receipt of the recommendation, the appointment orders in favour of M/s Revika Arora as Lecturer Chemistry was issued on 18.03.2011." 14. From the above, the case of respondent no.1 is that in case of Ms. Revika Arora, selection was made on, 16th October 2009, then it should remain operative for one year only i.e. till 15th October 2010, but what has been done by respondent no.1, is that Ms. Revika Arora has been appointed on 18th March 2011 i.e. after one year and five months from the date selection was made. The petitioner has sought consideration on the analogy and treatment adopted by respondents in case of Ms. Revika Arora. The Supreme Court on the subject, in State of J&K & others v. Sat Pal (supra), has concluded and observed: "12. The date of filing of the representation by the parties concerned and/or the date on which the competent authority chooses to fill up the vacancy in question, is of no consequence whatsoever. The only relevant date is the date of arising of the vacancy. It would be different legal proposition, if the appointing authority decides not to fill up an available vacancy, despite the availability of candidates on the waiting list. The offer made to Trilok Nath on 22.4.2008 by itself, leads to the inference that the vacancy under reference arose within the period of one year, i.e. during the period of validity of the waiting list postulated by the rules. The offer of the vacancy to Trilok Nath negates the proposition posed above, i.e., the desire of the employer not to fill up the vacancy. Herein, the appellants wished to fill up the vacancy under reference. Moreover, this is not a case where the respondent was seeking appointment against a vacancy over and above the posts for which the process of selection/ recruitment was conducted. Based on the aforesaid inference, we have, no hesitation in concluding that the appellants ought to have appointed the respondent Sat Pal, against the vacancy which was offered to Trilok Nath." 15. Based on the aforesaid inference, we have, no hesitation in concluding that the appellants ought to have appointed the respondent Sat Pal, against the vacancy which was offered to Trilok Nath." 15. The present controversy is covered by the case State of J&K & ors v. Sat Pal (supra), in which the Supreme Court, after having bird's eye view of the legal and factual position, held that "it would be just and appropriate to direct the appellants to appoint the respondent Sat Pal against the post of Junior Engineer (Civil) Grade-II. The aforesaid offer of appointment will relate back to the permissible date contemplated under the rules laying down conditions of service of the cadre to which the respondent Sat Pal will be appointed. Naturally, the respondent will be entitled to seniority immediately below those who were appointed from the same process of selection.....". 16. The undisputed facts emerging from the material on record are that petitioner had participated in the selection process and secured 54.51 points. Letter No. PSC/RTI/78/2011 dated 22.03.2011 (Annexure B to writ petition), which has not been disputed by respondents, depicts that the fourth Open Merit candidate, namely Sunita Raina, had secured 57.16 points. While having a glance of General Bio Data of Candidates of the post of Lecturer, Commerce, in Higher Education Department (accompanying Annexure B in writ petition), which as well has not been disputed by respondents, reveals that petitioner is next in the merit after four Open Merit candidates and she has secured 54.51 points i.e. next to above Sunita Raina. One of the candidates, whose name figured above that of petitioner, did not join the service, as such, there was absolutely no impediment for respondent Commission to recommend name of petitioner and similarly, consequent thereto, there was also no impediment for respondent department to consider appointment in favour of petitioner. The respondent Commission, in its Reply, states that respondent no.1 had not intimated/communicated as regards vacancy caused in the discipline due to non-joining of any selected candidate whereas respondent no.1, in his Reply, states that respondent no.2-Commission was duly informed qua availability of vacancy when Government Order No. 420-HE of 2010 dated 14.12.2010 was issued, whereby appointment of two appointees, who did not turn up, was cancelled and that respondent no.2 did not communicate the Waiting List. It is pertinent to point out here that it is not the case of respondents that any other candidate, higher than petitioner in the merit list, is/was available and could/can be offered the post against which the above appointee had not joined. 17. In view of the factual position noticed hereinabove, the reason indicated by respondents by not recommending/ appointing the petitioner is clearly unjustified. It is not a matter of dispute that petitioner participated in a process of selection for recruitment against the post of Lecturer Commerce. It is also not in dispute that one of the selected candidates, who was higher in merit, was offered appointment to the post of Lecturer Commerce, for which recruitment was held and that some of the posts remained vacant on account of the fact that the persons higher in merit to the petitioner had declined to join, despite having been offered appointment against the said post. The petitioner's claim seeking consideration for appointment could not be repudiated particularly on account of her assertion that her name in the merit figures immediately below the name of fourth candidate. This assertion has not been disputed by respondents in their Reply. It. is also not the case of respondents before this Court that any other candidate, higher than petitioner in the merit, is available and can be offered the post against which petitioner seeks consideration. 18. In the totality of circumstances of this case, the writ petition is disposed of with a direction to respondents to accord consideration to petitioner's case for appointment to the post of Lecturer in Commerce Discipline in Higher Education department, having regard to the consideration accorded in the case of Ms. Revika Arora and take a decision in the matter within a period of two months from the date of receipt of copy of the order. 19. Disposed of alongwith connected CMP(s).