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2021 DIGILAW 431 (JK)

Union Territory of J&K v. Asif Ahmad Sheikh

2021-08-23

PANKAJ MITHAL, SANJAY DHAR

body2021
JUDGMENT : Sanjay Dhar, J. 1. This intra-court appeal is directed against the judgment and order dated 10.09.2020 passed by the Writ Court in WP(C) No.944/2020 filed by respondent Nos.1 to 4 (hereinafter referred to as the writ petitioners) against respondent Nos. 5 to 7. The appeal has been filed by the Union Territory of J&K though it was not a party to the writ petition. In terms of the order dated 27.01.2021 passed by this Court, the appellant has been permitted to file the appeal against the impugned judgment. 2. The facts leading to filing of this appeal are that the writ petitioners filed a petition against respondent Nos.5 to 7 seeking a Writ of Mandamus directing them to conclude the selection process initiated pursuant to advertisement notice No.02 of 2019 dated 07.03.2019 and notice dated 26.03.2019 for selection and appointment of Assistant Professor/Junior Scientist in the discipline/stream of Veterinary Physiology, Live Stock Production Management, Veterinary Public Health and Veterinary Biochemistry with a further direction to accord consideration to the case of the writ petitioners by subjecting them to interview/test after assessing their comparative merit and to offer the writ petitioners appointment in case they make the grade. 3. The case of the writ petitioners before the Writ Court was that pursuant to advertisement notice No.02 of 2019 dated 7th of March, 2019, they offered their candidature for the posts of Assistant Professor/Junior Scientist in the specialty/discipline of Veterinary Science. The aforesaid advertisement notice was modified in terms of notice dated 26th of March, 2019. The writ petitioners alleged that despite lapse of about nine months since the date of issuance of the advertisement notices, the selection process has not progressed beyond the screening stage. According to the writ petitioners, the delay in conclusion of selection process has prejudiced their rights and interests. 4. The respondent Sher-i-Kashmir Institute of Agricultural Sciences and Technology (“the respondent University” for short hereinafter) filed its reply to the writ petition in which it took a stand that in view of circular dated 4th July, 2019, issued by the Finance Department of the Government of Jammu and Kashmir the selection process has been put on hold and in this regard correspondence between the Finance Department and the respondent University is going on. 5. 5. It appears that the learned Writ Court without impleading the Government of Union Territory of J&K as party to the proceedings, directed the Government counsel to report instructions in the matter. The Government appears to have filed its compliance/status report in which it took a stand that the Finance Department has issued a circular on 4th July, 2019, in terms whereof respondent University was required to seek financial concurrence prior to advertisement of the posts in question and it had to route the proposal through Administrative Department i.e., Agricultural Production Department. 6. The Writ Court after taking into account the stand of respondent University as well as that of the Finance Department proceeded to observe that the Government order, whereby financial concurrence of the Government prior to issuance of advertisement notice has been made mandatory, is prospective in nature and the same does not have any bearing on the case in hand, inasmuch as the advertisement notice in question has been issued much prior to the issuance of Government order. Accordingly, the Writ Court vide the impugned judgment dated 10.09.2020 issued a direction to respondent University to proceed with and conclude the selection process notwithstanding the Government order in question. It is this judgment which has been challenged by the Union Territory of J&K by way of instant appeal. 7. It is contended by the appellant that the respondent University depends upon the Government for financial assistance and, as such, financial concurrence is mandatory prior to making appointments to the posts as the same involves financial implications, which are to be borne by the Government. The other ground that has been urged by the appellant is that the Writ Court has erred in law while directing the respondent University to conclude the selection process as the writ petitioners have no right of appointment merely on the strength of having applied against the advertised posts and that the employer is well within its rights to abandon the selection process in respect of the posts advertised by it. 8. We have heard learned counsel for the parties and perused the record of the case. 9. 8. We have heard learned counsel for the parties and perused the record of the case. 9. The first contention that has been raised by the learned Advocate General is that the Writ Court has, after framing a question as to whether the SKUAST was justified in issuing the advertisement notification in question without the concurrence of the Finance Department, in para (10) of the impugned judgment, without answering the said question allowed the writ petition by observing that the Government order on the subject is prospective in nature. It is contended that even in the absence of Government Order No.377-F of 2019 dated 04.07.2019, those institutions and bodies who depend upon the Government finances cannot go ahead with the recruitment process without prior financial concurrence from the Government and, as such, even though the process of selection was initiated by the respondent University prior to issuance of aforesaid Government order, it was incumbent upon the University authorities to seek financial concurrence from the Government. 10. A perusal of the impugned judgment reveals that though in para (17) of the judgment the Writ Court has observed that from the scheme of law governing such selection and appointment, there is no scope for any concurrence to be sought from the Finance Department of the Government of Jammu and Kashmir yet in para (19) of the impugned judgment, the Writ Court has declined to go into this aspect of the case and thereafter proceeded to hold that the Government order in question would not apply to the instant selection process, the same being prospective in nature. It is in these circumstances that the learned Advocate General has contended that without answering the basic question framed in para (10) of the impugned judgment, the controversy involved in the writ petition could not have been determined. 11. In order to answer the aforesaid question, we need to notice the scheme of the Act under which the respondent University has been set up. The respondent University i.e., SKUAST, has been constituted in terms of Section 3 of the Sher-i-Kashmir University of Agricultural Sciences and Technology Act, 1982 (for short “the Act of 1982”). Thus, the respondent University is creature of a Statute having a separate existence of its own. 12. The respondent University i.e., SKUAST, has been constituted in terms of Section 3 of the Sher-i-Kashmir University of Agricultural Sciences and Technology Act, 1982 (for short “the Act of 1982”). Thus, the respondent University is creature of a Statute having a separate existence of its own. 12. Section 6 of the Act of 1982 relates to powers and functions of the University and sub-section (10) of the said provision confers power upon the University to create administrative, ministerial and other posts and to appoint persons to such posts. Chapter-III of the Act provides for setting up of various authorities of the University. These include the University Council, Board of Management, Academic Council, Research Council and the Extension Education Council. The powers and functions of these authorities are enumerated in various provisions contained in the said Chapter whereas certain other provisions of the Chapter provide for the composition of these authorities. 13. Chapter IV of the of the Act of 1982 provides for appointment of various officers of the University and their powers whereas Chapter VI relates to funds and accounts. Section 39, which is contained in Chapter VII of the Act of 1982, gives power to the University to frame Statutes providing for the matters enumerated therein, which includes the conditions of service, remuneration and allowances including travelling and daily allowances to be paid to officers, teachers and other persons employed under the University. 14. Section 47 of the Act provides that the suits and other legal proceedings by or against the University have to be instituted/defened on behalf of the University by the Registrar whereas Section 48 of the Act provides for method of appointment to the posts in connection with the affairs of the University. 15. From the aforesaid scheme of the provisions of the of the Act of 1982, it becomes clear that the respondent University is an autonomous body having its own identity distinct from that of the Government. The Act provides complete guidelines with regard to structure and functioning of the University. The provisions of the Act do not provide for any role of the Government in the functioning of the University except that certain officers of the Government in their capacity as members of various committees and authorities of the University have a role to play in running the affairs of the University. 16. The provisions of the Act do not provide for any role of the Government in the functioning of the University except that certain officers of the Government in their capacity as members of various committees and authorities of the University have a role to play in running the affairs of the University. 16. The learned Advocate General has laid emphasis on the fact that even as per the provisions of the Act of 1982, the respondent University is dependent upon the Government grants as is clear from Section 37 of the Act. He has further contended that the Finance Committee of the University has Commissioner/Secretary to the Government of J&K as its member in the capacity of Financial Advisor. Therefore, according to the learned Advocate General, the University authorities have to seek financial concurrence from the Government prior to initiation of selection process. 17. It is correct that the respondent University primarily depends upon the grants given to it by the Government of Jammu and Kashmir. The various provisions of the Act reveal that the authorities of the University constituted under the Act are dominated by Government officers as ex-officio members. It is also a fact that the Commissioner/Secretary to Government Finance Department as Financial Advisor is member of the Finance Committee of the University and he is also a member of the Board of Management but the question arises whether this is sufficient to conclude that the respondent University is not like any other department of the Government which is obliged to seek financial concurrence before initiation of process of selection. 18. We are afraid, the mere fact that the respondent University depends mainly on the grants and funds provided by the Government or that because the officers of the Government dominate various authorities of the respondent University, does not denude the respondent University of its independent and autonomous character. The respondent University is creature of a Statute having its independent existence. It can launch and defend legal proceedings in its own name as is clear from the provisions contained in Section 47 of the Act. The University has to function in accordance with the provisions contained in the Act of 1982 and the Statutes framed there-under and not in a manner which is alien or contrary to the Act and the Statutes. 19. The University has to function in accordance with the provisions contained in the Act of 1982 and the Statutes framed there-under and not in a manner which is alien or contrary to the Act and the Statutes. 19. It is not in dispute that the posts which were subject matter of the advertisement notice are duly sanctioned posts borne on the cadre of the respondent University. In fact, the respondent University has even the power to create administrative, ministerial and other posts in terms of sub-section (10) of Section 6 of the Act of 1982 and it has also power to appoint persons to such posts. The respondent University, in terms of its Statutes, has also power to lay down conditions of service etc. of its officers, teachers and other employees and, as already noted, Section 48 of the Act, gives power to the Vice Chancellor to make appointments to posts and services in some cases with the approval of the concerned authorities and in case of some lower posts without such approval. There is no provision either in the Act of 1982 or in the Statutes of the University which obliges the authorities of the University to seek prior financial concurrence from the Government for initiation of process of appointment to vacant sanctioned posts. The University has to function in accordance with the provisions of the Act of 1982 and the Statutes. It cannot be asked to function in a manner which is not provided in the Act or the Statutes. Thus, the respondent University is not obliged to seek financial concurrence from the Government for initiation of selection process to the posts which are already borne on its cadre. Any other view in the matter would be contrary to the functional autonomy of the University which is creature of a Statute and not just like any other department of the Government. 20. Learned Advocate General has vehemently contended that in case posts are filled up without prior financial concurrence of the Government, the University authorities may not be able to pay salary of the appointees in the absence of financial support from the Government. The submission is that in order to avoid such a situation the pre-requisite of financial concurrence has been provided for. 21. The submission is that in order to avoid such a situation the pre-requisite of financial concurrence has been provided for. 21. The argument is without any merit for the reason that the posts for which advertisement notice has been floated by the respondent University are duly sanctioned posts borne on the cadre of the University and as per Section 37 of the Act, the Government has to make lump sum grants of the University, inter alia, on account of estimated net expenditure of pay and allowance of the staff, contingencies, supplies and services of the University. Once budget in respect of expenditure on account of pay and allowances of staff etc. is sanctioned for a particular year by the Government in favour of the University, we do not feel that there is any justification in seeking financial approval for filling up of vacant posts. It is pertinent to note here that that annual accounts and budget estimates of the University are to be examined by the Finance Committee, of which the Commissioner/Secretary, Finance Department of the Government of J&K happens to be the Financial Advisor (Refer to Section 38 of the Act of 1982). So, the nominee of the Government heading the Finance Department has a role at the time of preparation of budget estimates as well as at the time of release of grants in favour of the University in accordance with the budget estimates. Commissioner/ Secretary to Government, Finance Department also happens to be a member of Board of Management of the University (Refer to Section 12 of the Act of 1982), which is vested with the power to approve recommendations for appointment of officers, teachers etc. of the University. Thus, not only in financial matters of the University but even in matters pertaining to appointments, Commissioner/Secretary to Government, Finance Department has a vital role to play. Thus, in the decision making process of the University, the Commissioner/Secretary to Government, Finance Department plays his role as a member of the Board of Management and as a member of Finance Committee. Once the Competent Authority of the University decides to initiate process for filling up of vacant sanctioned posts, it would be preposterous to again refer the matter to the Commissioner/Secretary to Government, Finance Department, for his concurrence when the said officer is already a part of the decision making process. 22. Once the Competent Authority of the University decides to initiate process for filling up of vacant sanctioned posts, it would be preposterous to again refer the matter to the Commissioner/Secretary to Government, Finance Department, for his concurrence when the said officer is already a part of the decision making process. 22. For the foregoing reasons, we do not find any force in the submission of the appellant that prior financial concurrence is necessary for initiation of process of selection of vacant sanctioned posts borne on the cadre of the respondent University. 23. The other ground urged by the appellant is that the learned Writ Court was not justified in issuing a Mandamus against the respondent University directing it to take the selection process to its logical conclusion, inasmuch as the writ petitioners merely by responding to the advertisement notice did not have any vested right of appointment to the posts applied for. In this regard, the learned Advocate General relied upon a Division Bench judgment of this Court in the case of Rash Pal Singh & Ors. Vs. Kamal Kishore & Ors, 2017 (2) JKJ 537 [HC]. 24. In the instant case, the selection process has been initiated by the respondent University by issuing advertisement notice No.02 of 2019 as modified vide notice dated 26.03.2019. The selection process, admittedly, is at its initial stage and only the applications have been scrutinized for determining the eligibility of those who have responded to the advertisement notice. Beyond this, the selection process has not proceeded. The question arises as to whether the writ petitioner, who as per their claim are entitled to appointment, have secured a vested right to seek a direction against the respondent University for completion of selection process. 25. It is a settled law that a right to be considered for selection crystalizes only after the candidate is called for interview pursuant to the advertisement. The empanelment of a candidate at best is a condition of eligibility for the purpose of appointment and empanelment by itself does not amount to selection or create a vested right to be appointed. 26. The Supreme Court in the case of State of Haryana v. Subash Chander Marwaha and Ors. (1974) 3 SCC 220 , has, after relying upon its earlier judgments in the case of Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College, [1962] (2) Suppl. 26. The Supreme Court in the case of State of Haryana v. Subash Chander Marwaha and Ors. (1974) 3 SCC 220 , has, after relying upon its earlier judgments in the case of Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College, [1962] (2) Suppl. SCR 144, observed that mandamus may be issued to compel an authority to do something when the Statute imposes a legal duty on that authority and the aggrieved party has a legal right under the Statute to enforce its performance. 27. In Rash Pal Singh and others (supra), a Division Bench of this Court while relying on the judgments of the Supreme Court in R.K. Jaiswal (Dr.) v. Debi Mukherjee & Ors. 1992 (2) SCC 148 , State of MP v. Rakesh Nigam, (2005) 12 SCC 380 , Kulwinder Pal Singh and another v. State of Punjab & Ors. (2016) 6 SCC 532 , Manbhar Devi Agarwal v. State of Rajasthan & Ors. (2017) 2 SCC 82 and Vijay Kumar Mishra v. High Court Judicature of Patna, (2016) 9 SCC 313 , has concluded that the State Government has a right to withdraw the advertisement notice and that a candidate has no vested right for consideration for appointment in terms of the advertisement notification. 28. In the face of the legal position stated hereinbefore, we are of the opinion that the learned Writ Court while issuing a mandamus to the respondent University to conclude the process of selection on the strength of the fact that the writ petitioners had applied pursuant to the advertisement notification in question, has fallen into an error, inasmuch as the writ petitioners have no right of consideration for appointment when the process of selection is still at its inception. 29. In view of what has been discussed hereinbefore, while we hold that the respondent University is not obliged to seek prior financial concurrence for initiation of selection process in respect of duly sanctioned vacant posts, we are of the view that the mandamus issued by the learned Writ Court directing the respondent University to proceed and conclude the selection process is not in accordance with law and, as such, the same is liable to be set aside. 30. 30. Accordingly, the direction issued by the learned Writ Court in para (21) of the impugned judgment is set aside and it is left open to the respondent University to take a decision with regard to conclusion of selection process of advertised posts independent of prior financial concurrence from the Government. 31. The appeal is disposed of in above terms.