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2019 DIGILAW 297 (JK)

State of J&K v. Krishan Kumar

2019-05-28

RAJESH BINDAL, SINDHU SHARMA

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JUDGMENT : Rajesh Bindal, J. 1. The State has filed the present intra-court appeal against the order passed by the learned Single Judge, whereby the writ petition filed by respondent No. 1 was allowed. 2. Briefly, the facts are that the respondent No. 1 filed the writ petition seeking a direction to the official respondents to issue appointment letter to him for the post of driver while implementing the select list, in which the writ petitioner was recommended for appointment in the Scheduled Caste Category. Despite grant of opportunity the State had failed to file any objections. Writ petition was allowed. Direction was issued for appointment of the writ petitioner. 3. Learned counsel for the State submitted that Agriculture Production Department sent requisition to the Service Selection Board (for short 'the Board') vide letter dated 23.12.2005 for filling up certain vacancies which were lying vacant in the department. One category of vacancy was of drivers. Nine vacancies were notified to the Board. These were specifically bifurcated with reference to category of the vacancy. Even roster points were also mentioned. 4. The Board issued Advertisement Notice No. 4 of 2006, in which two vacancies of driver were advertised. One was shown to be belonging to Open Merit Category, whereas other one belonging to Scheduled Caste Category. As per requisition made by the department as there was no vacancy in the Scheduled Caste Category, the same was not required to be filled up. The process of selection was held. The name of the writ petitioner finds mention in the provisional select list published by the Board in the Scheduled Caste Category, however, the recommendation was withheld. It was subject to production of original driving license. The Board sent the select list of the drivers to the department vide letter dated 02.06.2011, in which the name of the respondent No. 1 was recommended in the Scheduled Caste Category. Thereafter there was correspondence between the Board and the department and to be more specific, letter dated 28.11.2011 vide which specific request was made by the department to the Board requesting to furnish specific requisition against which selection of drivers was made so that the case could be processed further. The argument is that there being no requisition made by the department and no vacancy existing in the Scheduled Caste Category it was not possible for the department to have appointed the respondent as driver. The argument is that there being no requisition made by the department and no vacancy existing in the Scheduled Caste Category it was not possible for the department to have appointed the respondent as driver. The order passed by the learned Single Judge, hence, be set aside. 5. On the other hand, learned senior counsel for the respondent No. 1 submitted that in the correspondence, the department was unnecessarily raising issue regarding the vacancies. They never raised the dispute when the advertisement was issued and the process of selection was on. There was no corrigendum issued by the Board. Specific vacancy in the Scheduled Caste Category was advertised. There is no dispute that the respondent No. 1 was selected against that vacancy. Hence, there is no question of denial of appointment to him. If there was any discrepancy, it was for the department and the Board to resolve. The writ petitioner could not be made to suffer on that count. Reliance has been placed on judgment of Hon'ble the Supreme Court in Dinesh Kumar Kashyap and others vs. South East Central Railway and others, AIR 2019 SC 24 . 6. Heard learned counsel for the parties and perused the paper book. 7. The case in hand is an example of the manner in which the State is defending the cases against it in the Court. It is not a case in isolation. In this case objections were not filed in the writ petition for years. There are cases in which for decades the State had failed to file response to the petitions filed in this Court, as a result of which either the cases remained pending in the Court resulting in unnecessary harassment to the litigant and delay in grant of relief to them, wherever admissible or just choke the dockets of the Court. The cases have to be listed time and again. In most of the cases comprehensive reply is not filed in one go but piece meal information is furnished in court, for the reasons best known to the department concerned. The cases have to be listed time and again. In most of the cases comprehensive reply is not filed in one go but piece meal information is furnished in court, for the reasons best known to the department concerned. The second result is the type of case in hand, where in the absence of any response by the State, the writ petition was allowed and thereafter the department got up from slumber to challenge the order, thereby resulting in unnecessary harassment of litigants as well as generating avoidable litigation and adding to the burden of cases in the Court. It is besides financial burden on the State as cost of litigation and also the value of man hours spent to pursue the litigation. We can only hope that the state shall take some corrective steps to manage the litigation in a better way by using technology and fixing responsibility by holding someone accountable. 8. Now coming to the case in hand, here the stand of the appellant is that vide communication dated 23.12.2005, seven categories of vacancies were requisitioned to the Board for recruitment. One of the category was of drivers. Nine vacancies were notified to the Board for recruitment giving its breakup pertaining to the categories and also the roster points. The relevant part of the aforesaid communication, is extracted below: S.No. Category of Post No. of vacancies No. of vacancies reserved under the quota prescribed by the Govt. for :- Roaster point 7 Driver 09 01 S.T 02 B.A 01 LAC 05 Unreserved Category (OM) 06 07 & 12 10 05,8,9,11 & 13 9. In fact a perusal of the letter shows that the details were furnished by the department to the Board in pursuance to their query regarding breakup of vacancies category wise. From the record produced by learned counsel for the State in the Court it is evident that originally the requisition was sent by the department to the Board vide letter dated 06.09.2005, which was also accompanied by copy of the relevant recruitment rules and also the breakup of vacancies, not only category wise but also the cadre/division to which the vacancy related to. The Board issued Advertisement Notice No. 4 notifying various vacancies of different departments to be filled up. From Sr. Nos. 38 & 39 it is evident that three vacancies of drivers in Agriculture department were sought to be filled up. The Board issued Advertisement Notice No. 4 notifying various vacancies of different departments to be filled up. From Sr. Nos. 38 & 39 it is evident that three vacancies of drivers in Agriculture department were sought to be filled up. One pertaining to the State Cadre in Open Merit Category whereas two for the Kashmir Division; one in Open Merit Category and one for Scheduled Caste Category. The relevant part of the Advertisement Notice No. 4 of 2006 is extracted below: Item No. Name of the Post Department Cadre No. of posts with breakup Eligibility Qualification 1-37 xxx xxx Xxx xxx Xxx 38 Driver -do- State O.M 01 Middle pass having Hill driving Licence for a period of 2 years 39 Driver -do- Div Kashmir O.M 01 SC 01 Total 02 -do- 10. The process of selection continued. Driving test was also held. The respondent No. 1 was shown to be part of the provisional select list published on 24.01.2011. Thereafter, vide communication dated 02.06.2011, the Board made recommendation to the department stating that it had advertised two vacancies of drivers for Kashmir Division against item No. 39. No candidate was recommended against the Open Merit Category whereas against the Scheduled Caste Category the name of the respondent No. 1 was recommended. There was no reference to the vacancy advertised for State Cadre at Sr. No. 38 in the advertisement. From the communications available in the paper book it is evident that the department referred the matter back to the Board vide letter dated 19.07.2011 to send the requisition sent by the department for filling up the vacancies. Taking strong exception to such a communication, the Board sent copies of requisition made by the department. The aforesaid communication from the Board was responded to by the department vide letter dated 13.09.2011, referring to instances where it had come to the notice of the department that conduct of the Board earlier had not been fair. Recommendations were being made against the vacancies which were never requisitioned. It was in this light that the Board was asked for the copies of the requisition made by the department along with recommendation. The clarification regarding the requisition made for filling up the vacancies of driver was again sought vide the communication dated 28.11.2011 so as to enable the department to process the case further. 11. It was in this light that the Board was asked for the copies of the requisition made by the department along with recommendation. The clarification regarding the requisition made for filling up the vacancies of driver was again sought vide the communication dated 28.11.2011 so as to enable the department to process the case further. 11. The respondent filed writ petition in this Court on 11.02.2012 seeking a direction to the official respondents to issue formal appointment letter in his favour by implementing the select list in which the name of the writ petitioner figured in the category of Scheduled Caste. The recommendation was made by the Board to the department for appointment of the respondent as driver in the Scheduled Caste Category vide letter dated 02.06.2011. Vide communication dated 13.09.2011 from the Government of Jammu and Kashmir, Agriculture Production Department, to the Director Sericulture Development Department, under the signatures of Under Secretary of the aforesaid department, request was made for issuing formal order of appointment in favour of the respondent in view of the recommendations made by the Board vide letter dated 02.06.2011. 12. Learned counsel for the appellant has disputed the aforesaid letter as he submitted that the same was not part of the record with the department. His stand was also that had this communication been issued by the department there was no question of filing any appeal against the order passed by the learned Single Judge. 13. No doubt it was pointed out at the time of hearing but on minute scrutiny of record, some connivance is established. There are two communications signed by the same Under Secretary having same number and date i.e., Annexure-F dated 13.09.2011 with the writ petition; a letter from Agriculture Production Department to the Board seeking certain clarifications regarding recommendation made against the vacancies which were never requisitioned to be filled up and another is a communication from the department to the Director Sericulture Development Department directing for issuance of letter of appointment to the respondent No. 1, having been recommended for appointment against the post of driver in Scheduled Caste Category (Annexure-H dated 13.09.2011). This is further buttressed from a communication dated 28.11.2011 from the department to the Board, under the signatures of the same Under Secretary, seeking clarification with reference to recommendations made for the post of driver vide letter dated 02.06.2011. 14. This is further buttressed from a communication dated 28.11.2011 from the department to the Board, under the signatures of the same Under Secretary, seeking clarification with reference to recommendations made for the post of driver vide letter dated 02.06.2011. 14. To put the record straight, it would be appropriate to extract all the aforesaid communications, otherwise the picture as such may not be clear. 1st Communication dated 13.09.2011: "Government of Jammu and Kashmir Agriculture Production Department. The Secretary, J&K Services Selection Board, Srinagar. No: Agri/NG/Select/06/2010 Dated 13-09-2011 Subject: Select list for the post of Driver, Agriculture Department, Divisional Cadre, Kashmir. Sir, In response to your communication No. :SSB/Sel/Secy/011/3622-64, dated 08-08-2011, I am directed to say that at least two instances have come to the notice of this department, where the SSB has not been fair. In a recently received selection list, a candidate was recommended for the post of driver (State Cadre) in the Agriculture Department. When the requisition relating to that selection could not be identified by the department, a clarification was sought from your office. While clarifying, you reverted with the information that this is an error and you have now cancelled the selection of the recommended driver in the state cadre and instead recommended him against a divisional cadre post in Jammu division, despite the fact that the post had not been advertised. Secondly, out of the latest three selections received from the SSB, the selection process in respect of one category of posts has been initiated pursuant to the requisition received from the HOD, which again is not proper. Infact the SSB should have initiated selection process only after receiving the requisition from the administrative department. Furthermore, the SSB should make it a point to forward copies of the requisitions relating to the selections, irrespective of the fact whether those requisitions are available with the department or not. This will obviate the need for seeking clarification which had to unnecessary delays. Yours faithfully, Under Secretary to Government Agriculture Production Department" 2nd Communication dated 13.09.2011: "Government of Jammu and Kashmir Agriculture Production Department. The Director, Sericulture Development Department, J&K, Srinagar. No.: Agri/NG/Select/06/2010 Dated: 13-09-2011. Subject: Select list for the post of Driver, Agriculture Department, Divisional Cadre, Kashmir. Sir, I am directed to forward herewith a copy of the select list, received from the Secretary, J&K Services Selection Board, vide his No:SSB/Sel/Secy/011/2853-56, dated 02-06-2011, wherein Mr. The Director, Sericulture Development Department, J&K, Srinagar. No.: Agri/NG/Select/06/2010 Dated: 13-09-2011. Subject: Select list for the post of Driver, Agriculture Department, Divisional Cadre, Kashmir. Sir, I am directed to forward herewith a copy of the select list, received from the Secretary, J&K Services Selection Board, vide his No:SSB/Sel/Secy/011/2853-56, dated 02-06-2011, wherein Mr. Krishan Kumar, S/o. Mr. Bodh Raj, r/o. Nagni Bhalra, Bhadarwah, Doda, has been recommended for the post of Driver, Divisional Cadre, Kashmir, under the SC category, in the Agriculture Production Department. I am further directed to request you to issue formal orders of appointment in favour of the above named selectee, after verification of all the requisite documents and certificates, including the certificate of character and antecedents, as required under rules. A copy of the appointment order issued in favour of the selectee, may be furnished to this department and to the J&K Services Selection Board for information. Yours faithfully, Under Secretary to Government Agriculture Production Department" Encl: As above. 3rd Communication dated 28.11.2011: "Government of Jammu and Kashmir Agriculture Production Department. The Secretary, Services Selection Board, J&K, Jammu. No: Agri/NG/Select/06/2010 Dated 28-11-2011 Subject: Select list for the post of Driver, Agriculture Department, Divisional Cadre, Kashmir. Sir, I am directed to refer your letter No: SSB/Sel/Secy/011/2829-32 dated 02.06.2011 regarding the subject cited above and to request you to furnish the specific requisition to which this particular selection has been made, so that the case could be processed further. Yours faithfully, Under Secretary to Government Agriculture Production Department" 15. From the record it is established beyond doubt that as there was no requisition sent by the department to the Board for recruitment of driver against the vacancy in the Scheduled Caste Category, no recommendation as such could have been made. The Board is merely a recruiting agency. Any error committed by it in advertising the vacancies, which were not indented by the department concerned will not bind the department, hence, even the contention that there was no corrigendum issued by the Board will not have any legs to stand. If the requisition sent to the Board is compared with the advertisement issued, the same shows a totally different picture as if the Board was acting of its own. If the requisition sent to the Board is compared with the advertisement issued, the same shows a totally different picture as if the Board was acting of its own. In fact the conduct of the Board is further evident from the communication dated 13.09.2011, which has also been extracted above in paragraph No. 14, where the department had raised issue with the Board regarding making recommendation against the vacancies which were never requisitioned. The requisition sent by the department was so specific, which not only mentioned total number of vacancies, rather the cadre, division, category and even the roster points had also been specified. In the requisition sent there was no vacancy required to be filled up in the Scheduled Caste Category. Not only this the communications, as referred to above, clearly establish that the same officer, whose letter is sought to be relied upon by the respondent for seeking a direction from the Court for appointment, had been writing before and after that letter, seeking clarification from the Board. Accordingly, the recommendations made were beyond the requisition made by the department. 16. For the reasons mentioned above, we find merit in the present appeal. The same is accordingly, allowed. The impugned order passed by learned Single Judge is set aside. The writ petition filed by respondent No. 1 is dismissed.