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2016 DIGILAW 380 (JK)

Muzaffar Ahmad Bhat v. State of J&K

2016-07-20

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This review petition is filed seeking to review the order made in LPA No. 32/2013, dated 02.07.2013 by contending that review petitioner is the available candidate for appointment to the post of Electrician as he had secured 67.13 points particularly when the Respondent No. 5, though was selected, failed to join the duty and other two respondents who are above the petitioner in merit surrendered their right which is recorded in the order of the Division Bench. According to the review petitioner, he filed a writ petition bearing SWP No. 2206/2011 stating that the advertisement notice bearing No. 02 of 2008, dated 25.04.2008 was issued inviting applications for appointment to the post of Electrician, (Divisional Cadre Kashmir). The petitioner filed his application in Open Merit category. Applications received were scrutinized and the petitioner was also called for interview. The criterion for selection was 20 points for matric qualification, 60 points for diploma and 20 points for interview. The review petitioner was awarded 10.14 points for Matric, 48.09 points for diploma and 14.60 points in the interview and his total merit comes to 67.13 points. Respondent No. 5 secured 74. 24 points, Respondent No. 6 secured 70.81 points and Respondent No. 7 secured 70.42 points respectively. 2. The selection list was notified in daily newspaper Greater Kashmir on 06.12.2010. Respondent No. 5 was shown as selected subject to verification of original testimonials. According to the review petitioner, Respondent No. 5 was already appointed and is working in Dental College, Srinagar and therefore he chose not to join. Respondent No. 5 has also filed an affidavit to the effect that he will not claim for the post. It was the contention of the review petitioner that Respondent No. 6 and 7 were also appointed as Electricians in J & K State Power Development Corporation vide selection order dated 20.08.2009 and they also gave an affidavit stating that they are already working, as such, they have no claim for the post in question. The petitioner's name being shown at serial No. 4 of the merit list, he claimed the post by filing the writ petition. 3. The petitioner's name being shown at serial No. 4 of the merit list, he claimed the post by filing the writ petition. 3. In the writ petition the Services Selection Board filed objections stating that petitioner's name is placed at serial No. 4 as per merit and the first person shown in the merit list, namely, Respondent No. 5, was selected and only one post being available for which the 5th respondent was selected, there is no vacancy to be filled up. The learned Single Judge dismissed the writ petition on the basis of the said stand taken by the Services Selection Board. 4. The specific case of the petitioner before the Writ Court was that 5th respondent having been selected in some other department before the selection to the present post, he failed to join. Similarly Respondent Nos. 6 and 7, who were placed at serial No. 2 and 3 in the merit list, also got appointment in the year 2009 itself and all the three persons have submitted affidavits stating that they are not interested in getting the appointment in Government Press in terms of the advertisement notice. In fact the Government Press also addressed a communication to the Services Selection Board on 24.05.2011, stating that Respondent No. 5 failed to join within 21 days from the date of appointment order issued on 09.05.2011 and it seems that he is not interested to join the department. It was further stated that the Department is facing lot of problems in the absence of an Electrician and request was made to intimate the next selected (wait listed) candidate to enable the department to proceed further in the matter. The Administrative Department also sent a communication to the Services Selection Board on 29.09.2011 to that effect. 5. The Writ Court, without considering all these aspects and the placement of the writ petitioner at serial No. 4 of the merit list, dismissed the writ petition on the premise that the petitioner has not challenged the selection of the 5th respondent and, therefore, there is no scope of considering his prayer. L.P. Appeal No. 32/2013 was also dismissed, hence this review is filed contending that petitioner's case was not considered on the point urged i.e. the selected candidate having not joined and by filing an affidavit declined the post, as well as the respondent Nos. L.P. Appeal No. 32/2013 was also dismissed, hence this review is filed contending that petitioner's case was not considered on the point urged i.e. the selected candidate having not joined and by filing an affidavit declined the post, as well as the respondent Nos. 6 and 7, who are in merit list at serial No. 2 and 3, also having surrendered their right due to their employment which they have already got in some other department as stated supra, the petitioner being next candidate available and the merit list being valid for one year period in terms of Rule 14(5) of the Civil Services Decentralization and Recruitment Rules, 2010, the Writ Court as well as the Division Bench committed an error which is apparent on the face of the record, therefore, the order of the Division Bench affirming the order of the Writ Court has to be reviewed and the relief has to be ordered in favour of the petitioner. 6. The only point urged by the review petitioner in the review petition is that Respondent No. 5 and two persons namely Respondent No. 6 and 7 secured more points than the petitioner having got appointment and not interested in joining, the petitioner being the next meritorious candidate is bound to be considered for appointment as Electrician. 7. The affidavits were also filed by Respondents 5, 6 and 7 stating that they have already been appointed and are not interested in claiming the post. Merit list drawn by the J & K Service Selection Board dated 25.01.2011 is also placed on record in the review petition wherein it is clear that the review petitioner is placed at serial No. 4 and the highest meritorious candidate namely Respondent No. 5 was selected who was issued appointment order on 19.04.2011 stating that he has to join by 09.05.2011. The non-joining of 5th respondent after the intimation given about his selection by appointment order dated 19.04.2011 was also intimated by the General Manager, Government Press, Srinagar to the Secretary, Services Selection Board, Srinagar on 24.05.2011 which reads thus:- "Sir, Kindly refer to your office letter No. SSB/Sel/Secy/010/342-45, dated 25.01.2011 regarding the subject cited above. In this connection it is stated that this office vide Order No. 60 of 2011, dated 19.04.2011 issued formal appointment order in favour of Shri Abdul Rawoof Rather S/o. Mohd. In this connection it is stated that this office vide Order No. 60 of 2011, dated 19.04.2011 issued formal appointment order in favour of Shri Abdul Rawoof Rather S/o. Mohd. Yousuf Rather R/o. Balsoo Budgam, Kulgam as electrician in the pay scale of Rs. 5200-20200 Plus 1900 Grade Pay. A photograph is enclosed for your kind perusal. The appointee was required to join within a period of 21 days from the issuance of the order i.e. 09.05.2011. However, the appointee has not joined in the department as yet. It seems he is not interested to join the department. The Department is facing a lot of problems in absence of an Electrician. It is accordingly requested to kindly intimate next selectee (waiting list) "if any" to enable us to proceed further in the matter. An early action in the matter is solicited." 8. It is also relevant to note at this juncture that the writ petitioner claimed the post by filing the writ petition No. 2206/2011 i.e. during the validity of the select list which shows that he was vigilant enough in claiming his right at the right time. 9. The Hon'ble Supreme Court in the decision reported in Rakhi Ray and Others vs. High Court of Delhi and Others, (2010) 2 SCC 637 (3 Judge Bench) held that a candidate whose name is included in the select/wait list, he can seek appointment only if the advertised vacancy/vacancies are available. In the decision reported in Mukulk Saikia vs. State of Assam, (2009) 1 SCC 386 Hon'ble the Supreme Court held that once the appointments are made against the advertised posts, the select list gets exhausted and those who are placed below the last appointed candidate cannot claim the posts which subsequently became available. 10. In the review petition the petitioner has specifically pleaded that no fresh advertisement notice was issued for all these years and the post is still vacant and therefore no one will be put to prejudice by giving direction to consider the appointment of the petitioner in the vacancy available in the Government Press. 10. In the review petition the petitioner has specifically pleaded that no fresh advertisement notice was issued for all these years and the post is still vacant and therefore no one will be put to prejudice by giving direction to consider the appointment of the petitioner in the vacancy available in the Government Press. In the above circumstances, the review petition is ordered with a direction to the 2nd respondent to consider the appointment of the petitioner as Electrician, based on his merit position prepared and send by the 4th respondent, placing the petitioner at serial No. 4 as the selected candidate, namely the 5th respondent declined the offer of appointment and respondent Nos. 6 and 7, who are placed at serial No. 2 and 3 in the merit list are also not interested to be appointed as they have already been appointed in J & K Power Development Corporation, if the vacancy is available in the post of Electrician as on date, within a period of four weeks from the date of receipt of copy of this order. No costs.