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2019 DIGILAW 396 (JK)

Tabassum Kotwal v. J&K Service Selection Board

2019-08-23

TASHI RABSTAN

body2019
JUDGMENT : A. SWP No.1871/2012 1. The facts, as gathered from the writ record, are that vide Advertisement Notice No.06 of 2008 dated 28.05.2008, amongst other posts, six posts of Supervisors (OM-02, RBA-02, SC-01, ST-01 : Total 06) for District Reasi were advertised, which were to be filled up from amongst the eligible aspiring candidates. The qualification prescribed for the said post was Graduation and preference was to be given to female candidates having one of the subjects as Home Science, Child Development or Sociology. It is averred that the petitioner being eligible also applied for the aforementioned post of Supervisor in the Social Welfare Department under RBA Category and at the relevant time she possessed the qualification of M.A. in Sociology. It is averred that when the select list was issued by respondent No.1, the name of petitioner as well as one Pooja Kumari daughter of Sh. Prem Singh figured in the said list under RBA Category for District Reasi. However, before the issuance of formal appointment order in favour of petitioner, the name of one Princy Bhat came to be included in place of petitioner, although name of said Princy Bhat was neither figuring in the select list nor in the merit list. The petitioner herein, compelled by the circumstances, filed SWP No.2592/2010 and this Court vide order dated 09.11.2010 stayed the selection of Princy Bhat as Supervisor. Further, it is averred that respondents 1 & 2 filed objections in SWP No.2592/2010 stating therein that the petitioner herein has secured 53.28 points, whereas Princy Bhat has secured 54.46 points, however, due to computer error the petitioner herein was shown to have been selected though she has secured less points than Princy Bhat. 2. Now the case, as projected by the petitioner in the instant writ petition, i.e., SWP No.1871/2012, is that when she enquired from the office of Director, Social Welfare Department, respondent No.3 herein, she was told that both Princy Bhat and Pooja Kumar, selected under RBA Category in District Reasi, did not join pursuant to their selection against the post of Supervisor. Accordingly, the petitioner made a representation for operating the waiting list. Accordingly, the petitioner made a representation for operating the waiting list. In response to her representation, Social Welfare Department, respondent No.4 herein, vide Communication No.SWC/Estt/26/2008 dated 27.07.2011 requested the J&K Service Selection Board, respondent No.1 herein, to provide the waiting list of reserved categories including two posts of RBA Category of District Reasi, as no waiting list had been provided against the reserved categories at the time of issuance of select list. 3. It is averred in the petition that the select list was forwarded by the Service Selection Board on 07.09.2010 and respondent No.4 vide communication dated 27.07.2011, i.e., well within the period of limitation of one year, had intimated to respondent No.1 regarding clear-cut vacancy position in respect of each district including District Reasi. However, instead of forwarding the waiting list, respondent No.1 vide Communication No.SSB/N/4091-92/2011 dated 28.09.2011 addressed to respondent No.4 had sought about the clear cut vacancy position due to non-joining of candidates. Hence, the present writ petition. 4. Heard learned counsel for the appearing parties, considered their rival contentions and perused the writ file. 5. It is to be seen here that the present writ petition came to be filed on 03.09.2012 and notice to the respondents came to be issued on 04.09.2012. Learned counsel for respondents 1 & 2, i.e., Service Selection Board appeared before the Court on 13.12.2013 and sought two weeks time for filing objections. Thereafter, vide order dated 28.01.2014 last and final opportunity of two weeks was granted to the respondents for filing objections. Since respondents 3 & 4 neither appeared before the Court nor filed objections, as such vide order dated 25.02.2014 both the respondents were set exparte. However, in the interest of justice, vide the same order, respondents 1 & 2 were granted three weeks further time for filing objections, failing which their right to file the same was directed to be closed. Since, despite granting numerous opportunities, respondents 1 & 2 had failed to file reply, as such this Court vide order dated 26.03.2014 closed their right to file the reply and directed the respondents to produce the record. Again on 13.11.2018 the respondents were directed to produce the record with regard to the selection of petitioner, however, the said direction too fell deaf ears as the respondents even did not bother to produce the record of selection till date. 6. Again on 13.11.2018 the respondents were directed to produce the record with regard to the selection of petitioner, however, the said direction too fell deaf ears as the respondents even did not bother to produce the record of selection till date. 6. The present writ petition came to be filed on 03.09.2012 and today is 23.08.2019 and almost seven years are going to be lapsed, but the respondents did not bother either to file objections or produce the record of selection. Even, despite issuance of notice on 04.09.2012, the State or the Social Welfare Department, respondents 3 & 4 herein, did not bother to appear in this case or in SWP No.2592/2010 to counter the claim of petitioner. This all shows the apathy of State functionaries that how seriously they are dealing with the court matters. Once the respondents have failed to either file objections or produce the record, it leads to the only conclusion that the respondents are admitting and accepting the claim of petitioner. 7. Now the question arises for consideration is: whether the respondents can still be directed to consider and appoint the petitioner against the post-in-question after the expiry of validity of wait list of one year. 8. Annexure “J” annexed with the writ petition reveals that the petitioner had made a representation for operating the waiting list on 15.02.2011, whereas the validity of waiting list was up to 06.09.2011. The petitioner submitted the representation for operating the waiting list when a notice was published in daily newspapers that the selected candidates for the post of Supervisor in District Reasi under RBA Category had not submitted their documents. Thereafter, respondent No.4 vide communication dated 27.07.2011 requested the Service Selection Board to provide the waiting list of reserved categories including two posts of RBA Category of District Reasi. In the said communication, respondent No.4 clearly apprised about the clear-cut vacancy position due to non-joining of candidates. However, instead of providing the waiting list, the Service Selection Board vide its communication dated 28.09.2011 again sought clear cut vacancy position due to non-joining of candidates, when the fact of the matter was that respondent No.4 had already provided the clear cut vacancy position on 27.07.2011. However, instead of providing the waiting list, the Service Selection Board vide its communication dated 28.09.2011 again sought clear cut vacancy position due to non-joining of candidates, when the fact of the matter was that respondent No.4 had already provided the clear cut vacancy position on 27.07.2011. It seems the Service Selection Board was not intended to provide the waiting list and just wanted to kill the time so as that the period of validity of one year for operating the waiting list could get lapsed and that is why despite providing of clear cut vacancy position by respondent No.4 due to non-joining of candidates, the Service Selection Board again sought the same information forgetting that the purpose of waiting list would get defeated if the same were not operated within the period prescribed. 9. Obviously, the object and purpose to prepare the select list along with waiting list is to ensure that all the requisitioned vacancies are utilized. In my view, the delay on the part of respondents in not forwarding or operating the waiting list within the specified period does not invalidate the right of petitioner to be appointed against the post-in-question even after a lapse of eight years, that too when the petitioner had represented before the department on 15.02.2011, i.e., much before the expiry of validity of wait list, for operating the waiting list and the department too vide communication dated 27.07.2011 had requested the J&K Service Selection Board to provide the waiting list. Certainly, the purpose of waiting list is not served if non-joining vacancies are not filled up by wait list candidates. Therefore, for the lapse, non-seriousness and such a callous attitude on the part of respondents, the petitioner cannot be made to suffer. 10. I may cite the case of Allahabad High Court in Ved Prakash Tripathi vs State of U.P., 2001 LAB. I. C. 1040, the relevant portion whereof are paragraphs 6 and 7, which are as follows: “6. .....In the instant case seven candidates included in the select list dated 20.01.1999 though offered appointments did not join. The State Government was under an obligation to cancel the names of seven candidates who did not join and call for equal number of candidates but instead it cancelled the candidatures of only three candidates namely Shri Shahanshah Alam, Km. .....In the instant case seven candidates included in the select list dated 20.01.1999 though offered appointments did not join. The State Government was under an obligation to cancel the names of seven candidates who did not join and call for equal number of candidates but instead it cancelled the candidatures of only three candidates namely Shri Shahanshah Alam, Km. Manorama and Sri Prem Singh on account of their non-joining and by letter dated 27.7.1999 called for three additional names from the waiting list for appointment. The U.P. Public Service Commission by letter dated 20.10.1999 forwarded three additional names sought for by the State Government vide communication dated 27.7.1999. The State Government, however, subsequently cancelled the candidatures of remaining four candidates namely S/Sri Prem Narain, Shiv Mangal, Manoj Kumar Agarwal and Pranesh Kumar Pran on account of non joining and by letter dated 2.2.2000 requested the Commission to send four additional names from the waiting list of 1996 examination. Public Service Commission vide letter dated 28.6.2000 had declined to forward the names on account of the fact that in the meantime Assistant Prosecuting Officer Examination, 1997 held. The petitioners cannot be allowed to suffer due to fault of the respondents. It would appear that the vacancies which arose as a result of cancellation of the candidatures of S/Sri Prem Narain, Shiv Mangal, Manoj Kumar Agarwal and Pranesh Kuimar Pran vide State Government’s order dated 19.1.2000 were not included in the subsequent examination of 1997. In the peculiar facts and circumstances of the present case, therefore, the ratio of State of U.P. vs Rafiquddin ( AIR 1988 SC 162 ) (supra) as extracted above will have no application. 7. In the result the petition succeeds and is allowed. The respondent Public Service Commission shall send four additional names from waiting list of Assistant Prosecuting Officer Examination, 1996 to the State Government within a month and the State Government shall offer appointment to such candidates within another month.” 11. 7. In the result the petition succeeds and is allowed. The respondent Public Service Commission shall send four additional names from waiting list of Assistant Prosecuting Officer Examination, 1996 to the State Government within a month and the State Government shall offer appointment to such candidates within another month.” 11. Further, vide order dated 09.11.2010 passed in SWP No.2592/2010, filed by the petitioner herein, a coordinate Bench of this Court stayed the selection of one Princey Bhat as Supervisor in the Social Welfare Department and the said order has not been vacated as yet; meaning thereby the stay is still operating and the post of Princey Bhat as yet has not been filled up, whereas the petitioner herein is the lone candidate who has been agitating the matter from November 2010 to till date, as such she is required to be offered appointment against the said post. 12. Therefore, in view of what has been discussed above and in the peculiar facts and circumstances of the case, I deem it proper to allow the writ petition. Accordingly, the same is allowed. Jammu & Kashmir Service Selection Board is directed to send the name of petitioner herein from the waiting list of Supervisor in Reasi District under RBA Category within a period of four weeks from the date a certified copy of this order is made available by the petitioner to the J&K Service Selection Board against proper receipt. On receiving the name of petitioner, the State Government shall offer appointment to the petitioner within another four weeks. State Government is directed to offer appointment to the petitioner with effect from 06.09.2011, i.e., from the last date of expiry of waiting list, with all consequential benefits including seniority etc. minus the monetary benefits. In case either the Service Selection Board or the State Government fails to adhere to the aforesaid directions within the period prescribed, they shall be burdened with rupees one lac as costs to be paid by such respondent, who would fail to adhere to the direction, to the petitioner. Connected CMA, accordingly, stands disposed of. B. SWP No.2592/2010 13. In view of allowing of SWP No.1871/2012, the present writ petition does not survive and the same is, accordingly, disposed of along with connected CMA. Jammu (Tashi Rabstan) 23.08.2019 Judge (Anil Sanhotra)