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2018 DIGILAW 939 (JK)

Ashwani Kumar v. State of J&K

2018-11-30

DHIRAJ SINGH THAKUR

body2018
JUDGMENT : 1. Since the issues involved in these writ petitions are identical, therefore, the same are being decided by virtue of a common judgment. 2. By virtue of advertisement Notice No. 539 of 2005 dated 25.08.2005, applications were invited from eligible candidates for 73 posts of Warders in the Prisons Department. The petitioners appear to have submitted their application forms and also participated in various tests, which had been prescribed, including the viva-voce test. 3. The grievance of the petitioners is that despite the fact that the process was initiated as far back as in the year 2005, the respondents have failed to finalize the selection process for the last 12 years and no final select list has been issued. It is also stated that most of the petitioners in the interregnum have become overage and are now ineligible to apply for a stable Government job. 4. Although, detailed objections have not been filed in the writ petition, Mr. Raman Sharma, learned Dy. AG appearing on behalf of the State submits that the statement of facts has been filed on behalf of DGP Prisons on 24.07.2018. In the statement of facts, a stand is taken that during the process of selection, some reports were received regarding commission of some illegalities/irregularities in short-listing of the candidates. 5. It is further stated that in the year 2013, the then DGP Prisons had communicated to the Government that selection made be withdrawn and a fresh selection be conducted. It is stated that the issue since then has remained under correspondence with the Director General of Police (Prisons) and the Department of Law, Justice and Parliamentary Affairs. 6. It is further stated that due to certain ambiguities in the factual details relating to the relevant records pertaining to the selection of Warders, the Home Department has been taking requisite steps to arrive at a just and fair conclusion and that the decision would be taken only with the approval of the competent authority. 7. On a perusal of the record, it is clear that a number of opportunities had been granted to the respondents to take an appropriate decision in regard to the selection process in question. One of such orders was passed on 23.04.2018, whereby the Principal Secretary to Government, Home Department was directed to do the needful on or before the next date of hearing. One of such orders was passed on 23.04.2018, whereby the Principal Secretary to Government, Home Department was directed to do the needful on or before the next date of hearing. The matter then came up before the Court on 06.07.2018 when it was made clear that the order dated 23.04.2018 be complied with, failing which the Principal Secretary to Government, Home Department would remain personally present. Neither the Court order was obeyed nor the Principal Secretary, Home chose to appear before the Court on 08.08.2018. On the said date, at the request of learned counsel for the respondent-State, a further last and final opportunity of four weeks’ was granted to him to comply with the order dated 23.04.2018. 8. When the matter was again taken up on 12.09.2018, learned counsel for the respondent-State reported that a status report has been filed in compliance to the order dated 23.04.2018 on the same date. On a perusal of the same, filed by one Nivedita Munshi, Under Secretary to Government, Home Department, it reveals that the facts contained in the earlier statement of facts filed by the DGP Prisons on 24.07.2018 were repeated and it was stated that the matter was being taken up with the Department of Law, Justice & Parliamentary Affairs for further examination and advice. Even today, learned counsel for the respondent-State deposed that no decision has been taken and, therefore, six weeks’ further time is being sought to take a decision in the matter. 9. As to what is the right of the candidates appearing in a process of selection for appointment is no longer res integra. It has been held that merely because a candidate participates in the process of the selection or finds his name figuring in the select list does not per se give him a right to seek an appointment. The appointing authority may, in appropriate cases for good and justified reasons abandon the process of selection, but the same cannot be done for malafide or oblique reasons. Reference in this regard is made to Neelama Shangla Vs. State of Haryana and others, 1987 AIR 169 and Shankarsan Dash Vs. Union of India, 1991 AIR 1612. 10. The appointing authority may, in appropriate cases for good and justified reasons abandon the process of selection, but the same cannot be done for malafide or oblique reasons. Reference in this regard is made to Neelama Shangla Vs. State of Haryana and others, 1987 AIR 169 and Shankarsan Dash Vs. Union of India, 1991 AIR 1612. 10. In the present case as well, the Government did have a right to take an appropriate decision based upon the material, which was available with it to either carry forward the process of selection leading to issue of appointment orders in favour of successful candidates or to abandon the same. In the present case, despite the fact that more than 12 years have elapsed from the date of issuance of the notification in question in the year 2005 and despite repeated directions issued to the respondents to take an appropriate decision with regard to the selection in question, the State has miserably failed to act at all. 11. Evasive affidavits have been filed from time to time that the matter was being considered in consultation with various departments. While the concern of the Government can be appreciated that the process of selection, which is tainted and smells of arbitrariness or unfairness should normally not result in an appointment, yet the petitioners cannot be permitted to wait ad infinitum for the Government to take a decision in that regard. 12 years is a long enough period for the Government to decide as to whether they intended to annul the process of selection or accept the same. 12. Having considered the matter in its entirety, these petitions are disposed of with the following directions:- a. The respondents shall take an appropriate decision with regard to whether the process of selection as initiated vide Advertisement Notice No. 539 of 2005 dated 25.08.2005 is to be abandoned. b. In case, the decision is to abandon the process of selection, the order to that effect should be a speaking order giving details. 13. Let an appropriate decision be taken by the respondents positively by 15.02.2019. If no decision is taken by this date, the selection process conducted shall be deemed to be good and shall be followed by issuance of a select list by 05.03.2019. Appointment orders shall be issued within two weeks’ thereafter, i.e. by 20.03.2019. The schedule fixed shall be strictly complied with. If no decision is taken by this date, the selection process conducted shall be deemed to be good and shall be followed by issuance of a select list by 05.03.2019. Appointment orders shall be issued within two weeks’ thereafter, i.e. by 20.03.2019. The schedule fixed shall be strictly complied with. In case, the decision is adverse to the petitioners, they shall be at liberty to approach this Court again. 14. Writ petitions are, accordingly, disposed of along with connected IAs.