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2019 DIGILAW 413 (JK)

State of J&K v. Pardeep Chouhan

2019-09-13

RAJESH BINDAL, SINDHU SHARMA

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JUDGMENT : RAJESH BINDAL, J. 1. State has filed the present intra-court appeal against the order passed by the learned Single Judge, whereby the writ petition filed by the respondent was allowed. 2. The respondent approached this Court claiming that he was at Serial No. 15 in the waiting list in the Open Merit category for the post of Sub-Inspector. The waiting list was operated only up to Serial No. 13. The candidate at Waiting List No. 14 refused appointment and the petitioner being the next candidate, should have been offered appointment during the currency of the waiting list. The learned Single Judge finding merit in the plea raised by the respondent/writ petitioner allowed the petition with a direction to the official respondents to take appropriate decision and consider the name of the petitioner against the available vacancy along with other eligible candidates whose names figure in the waiting list. 3. Learned counsel for the appellant submitted that selection process for the post of Sub-Inspectors, Finance was initiated by the J&K Services Selection Board (for short ‘the Board’). Total of 107 posts were advertised. After completion of the selection process, vide letter dated 13.05.2014, names of 75 candidates were recommended; 32 posts were kept vacant on account of certain directions issued by the court. The Board further clarified that even the waiting list will be issued later on. Subsequently, the Board forwarded recommendations for appointment for 25 candidates along with waiting list of 21 candidates on 18.02.2015. As per Rule 14(7) of the J&K Civil Services (Decentralization and Recruitment) Rules, 2010, the waiting list was to remain in force for a period of one year from the date the same is sent to the requisitioning authority. As some of the candidates from the select list did not join, offer for appointment was made to the candidates who were in the waiting list. Last offer of appointment was made to the candidates from the waiting list in the Open Merit category up to Serial No. 13, vide Government Order dated 25.01.2016. Period of 21 days was granted for joining. However, before the expiry of that period, the waiting list had lost its validity. Though, it was sought to be claimed by the petitioner that candidate at Serial No. 11 in the waiting list did not join and as a result, the respondent should have been appointed but this is factually incorrect. Period of 21 days was granted for joining. However, before the expiry of that period, the waiting list had lost its validity. Though, it was sought to be claimed by the petitioner that candidate at Serial No. 11 in the waiting list did not join and as a result, the respondent should have been appointed but this is factually incorrect. In fact, the candidate at Serial No. 11, namely Rajan Kumar Sharma had submitted his joining report and later on resigned. His resignation was accepted and he was discharged from service vide order dated 11.06.2016. 4. Any vacancy on which a candidate selected had joined but later on leaves the job cannot be treated as a vacancy which is unfilled: Waiting list cannot be operated for that as the same will be a future vacancy. The candidate at Serial No. 14 in the waiting list was not willing to join. The respondent was at Serial No. 15. 5. On the other hand, learned counsel for the respondent submitted that the plea regarding joining of Rajan Kumar Sharma was raised by the appellant only in the present appeal. In fact, no objections were filed by the appellants before the learned Single Judge. Only, the resignation tendered by Rajan Kumar Sharma and his acceptance were placed on record and not the joining report. Even in an application filed under Right to Information Act, no information was supplied to the respondent. All the documents placed on record by the appellant are fabricated. Respondent had even filed the Contempt Petition alleging violation of the order passed by this court. He also referred to Communication dated 08.02.2016 to submit that Rajan Kumar Sharma had in fact not joined but had shown his reluctance to join. Hence, the plea that the post already stood filled up was wrong. In view of the aforesaid factual matrix, it was submitted that the writ petitioner having submitted his representation for operation of the waiting list within the validity thereof, he should not be deprived of his right of appointment. 6. Heard learned counsels for the parties and perused the paper-book. 7. Result of casualness on the part of the State in not responding to the petitions filed in this court is writ large to the case in hand. The writ petition remained pending for quite some time with no response from the official respondents. 6. Heard learned counsels for the parties and perused the paper-book. 7. Result of casualness on the part of the State in not responding to the petitions filed in this court is writ large to the case in hand. The writ petition remained pending for quite some time with no response from the official respondents. As a result, learned Single Judge decided the same on whatever facts were available on record. Inaction on the part of the State resulted in generation of avoidable litigation. There is dire need to tone up the machinery to take care of the cases pending in court seriously. 8. Small issue involved in the present litigation was as to whether the respondent deserves to be offered appointment by operating the waiting list. The post for which the respondent applied was Sub-Inspector. 107 vacancies were advertised of different categories. First select list was sent by the Board on 13.05.2014 recommending names of 75 candidates, as for the balance vacancies, some litigation was pending. Subsequent recommendations were made on 18.02.2015 along with waiting list. As per Rule 14(7) of the J&K Civil Services (Decentralization and Recruitment) Rules, 2010, the life of waiting list is one year. Appointments were made from the waiting list. The name of the respondent figured at Serial No. 15. The waiting list was operated up to Serial No. 13, in the open merit category to which the petitioner belongs. Those candidates were offered appointments vide order dated 25.01.2016 and were given 21 days for joining. Before the expiry of the aforesaid period, the life of waiting list expired. 9. Issue sought to be raised by the respondent was that candidate at Serial No. 11 of the waiting list did not join and had in fact stated so before the authority and further the candidate at Serial No. 14 was also not willing to join. Hence, the respondent who was at Serial No. 15 in the waiting list should have been offered appointment. In support of the argument, learned counsel had referred to letter dated 08.02.2016 in his petition. 10. No doubt, no objections were filed to the writ petition when it was pending before the learned Single Judge. Hence, all the documents have been placed on record with the present appeal. The stand taken by the State was that Rajan Kumar Sharma, a candidate at Serial No. 11 had in fact joined. 10. No doubt, no objections were filed to the writ petition when it was pending before the learned Single Judge. Hence, all the documents have been placed on record with the present appeal. The stand taken by the State was that Rajan Kumar Sharma, a candidate at Serial No. 11 had in fact joined. He had submitted his joining report on 01.02.2016 and thereafter resigned on 05.02.2016. His resignation was subsequently accepted. As the issue was sought to be raised by the respondent while referring to a letter of a subsequent date, the appellant was directed to produce the letter dated 08.02.2016, vide which the respondent claimed that Rajan Kumar Sharma had submitted his reluctance to join the duties. The aforesaid letter has been produced along with application seeking permission to place the same on record. It is a letter from the Additional Commissioner, Commercial Taxes Administration, Jammu to the Commissioner Commercial Taxes, Jammu enclosing in original the resignation letter of Rajan Kumar Sharma. The joining report and the letter of resignation was also annexed. The aforesaid facts clearly establish that Rajan Kumar Sharma had submitted his joining report and immediately thereafter he resigned. His application was processed in the department at different levels and finally vide order dated 11.06.2016, he was discharged from service. 11. Though the plea was sought to be raised by learned counsel for the respondent that this all was created just to deprive the respondent of his right to seek employment, however, the argument is totally misconceived. It is not simply one letter which could be inserted in the file, rather the copies of the communications placed on record clearly suggest that those were dealt with at different levels in the department in due course of business and finally even the Commissioner/Secretary to the Government had passed the order. Once a vacancy had already been filled up and the candidate after joining had resigned, the same cannot be treated as a vacancy for which waiting list was to be operated upon. As the life of the waiting list expired thereafter, the respondent cannot possibly be offered appointment. 12. For the reasons mentioned above, we find merit in the present appeal. The same is accordingly accepted. The order passed by the learned Single Judge is set aside. The writ petition filed by the respondent is dismissed.