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2020 DIGILAW 675 (JK)

Union Territory of J&K v. Maria Nazir

2020-12-11

RAJNESH OSWAL, SANJEEV KUMAR

body2020
JUDGMENT : Sanjeev Kumar, J. 1. This appeal under Clause 12 of the Letters Patent is directed against the judgment dated 30th of October, 2019, passed by learned Single Judge in SWP No. 1888/2015 titled Maria Nazir & Ors. Vs. State of J&K & Ors. 2. With a view to better appreciating the grounds of challenge urged on behalf of the appellant, it is necessary to set out few relevant facts. 3. In the year 2014, a then Incharge Chief Education Officer, Kulgam, in his capacity as Chairman, District Recruitment Committee for Class IV employees of the School Education Department in Kulgam, issued an advertisement notification vide his No. CEO/K/ NT/01/14 dated 04.08.2014, inviting applications for recruitment of Class IV employees. In response to the aforesaid advertisement notification, the respondents submitted their applications. 4. After scrutiny of the applications of all the eligible candidates, a provisional shortlist on the basis of merit was prepared and published for inviting objections, if any, from the aggrieved candidates. The respondents herein were amongst various other eligible candidates who were interviewed by the appellants. All the respondents found their name in the provisional selection list issued by the Chairman, Selection Committee i.e. Incharge Chief Education Officer, Kulgam, on 29th of December, 2014. All the selected candidates including the respondents herein were called upon to submit their testimonials for verification in the office of Chief Education Officer, Kulgam, within 21 days from the issuance of notice. By virtue of the aforesaid notification, the objections, if any, in respect of the provisionally selected candidates were also invited from the aggrieved candidates within seven days. 5. The provisionally selected candidates including respondents herein responded to the provisional select list by submitting their joining report and the testimonials for verification. When the Chief Education Officer, Kulgam, did not issue posting orders of the respondents for long, they filed SWP No. 1888/2015 in this Court seeking, inter alia, a direction to the appellants to issue orders of posting of the respondents and also for release of their of their salary with effect from the dates they had submitted their joining reports. 6. On being put on notice, appellants filed their objections and contested the claim of the respondents. 6. On being put on notice, appellants filed their objections and contested the claim of the respondents. It was contended that the Committee which conducted the selection process was not validly constituted and the selection carried was in violation of Government Order No. 735-GAD of 2008 dated 30th of May, 2008, wherein the criterion for composition of the District Level Committee for recruitment to Class-IV posts in Government departments stood notified. An objection was also taken with regard to submission of joining reports by the provisionally selected candidates without there being any formal order of appointment issued in their favour by the competent authority. The Writ Court after considering the rival contentions and having gone through the record came to the conclusion that the constitution of the Committee was the domain of the appellants and, therefore, any irregularity in constitution of the Selection Committee cannot be a reason for denying appointment to the respondents who have faced a regular selection process and were selected on the basis of their merit. The Writ Court, accordingly, allowed the petition and declared the respondents (writ petitioners) to have been appointed pursuant to the order of selection dated 29th of December, 2014 against Class-IV posts in District Kulgam from the dates they had submitted their joining reports. Further direction was issued by the Writ Court to the Chief Education Officer, Kulgam, to issue orders of posting in favour of the respondents (writ petitioners) forthwith and pay them the arrears of salary from the date of joining in terms of select list dated 29th of December, 2014. It is this order/judgment of the Writ Court, the appellants are aggrieved of. 7. Heard learned counsel for the parties and perused the record. 8. There is no dispute that the respondents herein came to be provisionally selected as Class-IV employees in the School Education Department in District Kulgam pursuant to a selection process initiated by the then Incharge Chief Education Officer, Kulgam, by issuing a proper advertisement notification which was widely published. They were not only shortlisted but ultimately made it to the select list on the basis of their merit evaluated as per the selection criteria adopted in the selection. It is equally true that the select list in which the names of respondents figured was provisional in nature and subject to objections, if any from the aggrieved candidates. They were not only shortlisted but ultimately made it to the select list on the basis of their merit evaluated as per the selection criteria adopted in the selection. It is equally true that the select list in which the names of respondents figured was provisional in nature and subject to objections, if any from the aggrieved candidates. Indisputably, neither the provisional select list was ever finalized nor were formal orders of appointment issued in favour of the provisionally selected candidates. It appears that before the then incharge Chief Education Officer could finalize the select list and issue formal orders of appointment in favour of the provisionally selected candidates, some issues were flagged by the Directorate of School Education which included the composition of the Selection Committee and the adoption of selection criteria reserving as many as 40% marks for viva voce. In view of the serious objection taken by the Directorate of School Education to the manner in which the selection process was conducted, the Chief Education Officer concerned did not issue the formal orders of appointment and posting of the respondents. This made the respondents to seek intervention of this Court and, therefore, the writ petition before the learned Single Bench. 9. The respondents were aware that the provisional select list which was subject to objections from the aggrieved candidates had not been finalized and they had only been asked to submit their testimonials for verification yet they submitted their joining reports taking the provisional select list as an order of appointment. From the perusal of original record produced by Mr. N. H. Shah, Sr. AAG, it transpires that none of the respondents was permitted to join, rather an endorsement was made on their applications which reads as "keep it pending till selection list is approved by DSEK". The plea of the respondents that pursuant to the provisional select list they were permitted to join is contrary to record. Otherwise also, from the provisional select list published it is abundantly clear that the list was subject to objections of the aggrieved candidates and the same was to be finalized after considering such objections, if any received. We find from the record that several candidates had raised objections to the provisional select list but the authorities did not advert to those objections nor did they finalize the select list. 10. We find from the record that several candidates had raised objections to the provisional select list but the authorities did not advert to those objections nor did they finalize the select list. 10. In the face of aforesaid admitted position, it is hard to accept that the respondents by submitting their original testimonials for verification became entitled to join when neither there was any order of appointment nor order of posting issued by the competent authority. We, however, could not find any Government order or executive instruction which provides that the operation of the select list prepared by the District Recruitment Committee for Class-IV posts is subject to approval by the Head of the Department concerned. Though from the correspondence on record it reveals that provisional select list was forwarded to the Directorate of School Education, Kashmir, by the Chief Education Officer, Kulgam, for approval but the same was not approved on the ground that the Chairman, District Recruitment Committee/Incharge Chief Education Officer, Kulgam, had not associated, in the selection, a nominee of the Head of the Department. The Chief Education Officer has tried to justify the inclusion of the Principal, Government Higher Secondary School, D.H. Pora, in the Selection Committee being the nominee of the Head of the Department, by asserting that it was done pursuant to telephonic instructions received from the Directorate of School Education, Kashmir. However, interestingly, the communication of the then Incharge Chief Education Officer addressed to the Principal, Government Higher Secondary School, D. H. Pora, inviting him to sit in the Selection Committee pursuant to the telephonic instruction of the Director, was never endorsed to the Director. In this view of the matter, it is very hard to believe that the Principal, Government Higher Secondary School, D. H. Pora, who was associated in the selection, was nominee of the Head of the Department i.e. Director, School Education, Kashmir. That being the position, we have no option but to accept the stand of the appellants that the Selection Committee was not validly constituted. We would not allow the provisional select list to be operated in the manner directed by the Writ Court for the reason that the objections received to the provisional select list were not considered by the Committee nor the provisional select list was ever finalized. We would not allow the provisional select list to be operated in the manner directed by the Writ Court for the reason that the objections received to the provisional select list were not considered by the Committee nor the provisional select list was ever finalized. Needless to say that the select list does not confer any right on the selectee to be appointed and the Appointing Authority is well within its power not to operate the select list and issue the appointment order if it has valid and cogent reasons to do so. Unless it is demonstrated that the decision not to operate the provisional select/select list is arbitrary and a colourable exercise of power, this Court would not issue a Mandamus directing the employer to necessarily operate the select list and appoint the selected candidates against the post they have been selected by the Selection Committee. (See Mohd. Rashid Vs. Director Local Bodies, New Secretariat, (2020) 2 SCC 582 , Kulwinder Pal Singh and anr. Vs. State of Punjab & Ore, (2016) 6 SCC 532 , and, Shankarsan Dash Vs. Union of India, AIR 1991 SC 1612 . 11. Viewed thus, we find that there was nothing wrong in the decision of the appellants not to operate the select list, particularly when the composition of the Committee was not in accordance with Government Order No. 735-GAD of 2008 dated 30th of May, 2008, and the provisional select list had not been finalized after taking into consideration the objections filed by many aggrieved candidates. We also do not approve the issuance of Mandamus to the appellants to treat the respondents as having been appointed in terms of the provisional select list in the absence of final select list and formal orders of appointment issued by the competent authority. The Writ Court has proceeded totally on a wrong premise and, therefore, the impugned judgment does not stand the scrutiny of law. 12. Accordingly, this appeal is accepted and the judgment of the learned Single Judge is set aside. The Writ Court has proceeded totally on a wrong premise and, therefore, the impugned judgment does not stand the scrutiny of law. 12. Accordingly, this appeal is accepted and the judgment of the learned Single Judge is set aside. We, however, direct the Chief Education Officer, Kulgam, to place the whole record before the Commissioner/Secretary to Government, School Education Department, who will himself or through a Committee constituted by him, go into the legality and otherwise of the selection process carried by the then Incharge Chief Education Officer, Kulgam, and if upon such verification, it is found that the selection process carried by the then Chief Education Officer was fair and the candidates had been selected on the basis of their merit and in accordance with the rules, shall proceed to finalize the select list and issue formal orders of appointment in favour of the selected candidates, notwithstanding the fact that in the Selection Committee which conducted the recruitment process, nominee of the Head of the Department was not associated. Let this exercise be completed by Commissioner/Secretary to Government School Education Department within a period of four weeks from the date copy of this order is served upon him. 13. Record be returned back to Mr. N. H. Shah, Sr. AAG.