Abdul Khaliq Ganai And Ors. vs State Of J&K And Ors. on 21 May, 2002

Jammu High Court
Abdul Khaliq Ganai And Ors. vs State Of J&K And Ors. on 21 May, 2002
Equivalent citations: 2003 (2) JKJ 585
Author: S Bashir-Ud-Din
Bench: S Bashir-Ud-Din


JUDGMENT

Syed Bashir-ud-Din, J.

1. All the four petitioners figuring as wait list candidates for appointment in Education Department as Class IV employes on the list drawn in July, 1993 by the Board with District Development Commissioner, as its Chairman for Baramulla District. The Board (s) was constituted to fill up inter alia categories of Class IV vacancies pursuant to Government Order No. 461-GR of 1990 dated 16.4.1990. The names of the three writ petitioners on the wait list were forwarded by District Recruitment Board Baramulla to Principal Government Higher Secondary School (Boys) Sopore for appointment in the school as also allegedly in catchment area of the school and on that ground the case of petitioner in SWP No. 1656/93 was forwarded to Head-Master Govt. High School Boys Hardshiva a for adjustment against the available post. However Commissioner-cum-Secretary to Government Education in its communication dated 26.7.1993 (Annexure P4) issued directions stopping appointments against Class IV vacancies on selects panel till orders are issued by the Administrative department in that behalf and the posts were accordingly freezed Petitioners have challenged this action of Commissioner Secretary to Govt. respondent No. 5 on the ground that petitioners were duly appointed in the schools and have joined their duties. There cannot be a direction to the appointing authority for appointment of a candidate on selection list only because the Government wants so. Petitioners have not been given opportunity of being heard before the order freezing the posts were issued thereby the petitioners are left with no choice. Both writ petitions have been admitted to hearing. Mr. Qadri, Sr. AAG tenders statement that the reply which he has filed in SWP No. 1656/93, may be read mutatis mutandis, as reply in SWP No. 1620/93. The other party has not raised any objection thereto. Orders accordingly.

2. The respondents in reply have contended that because of wide spread irregularities noticed by the Administrative Department, regarding selection against Class IV vacancies, Government put ban on appointments of candidates from the select lists, till appointment orders are issued by Administrative Department and further freezed the posts. This apart no formal appointments have been made by the competent authority in respect of any of the petitioner. The petitioners who figure in the select list have no right of appointment only because of their empanelment on select list though the petitioners case is at much lower pedestal, in as much as, they are not even in select list, but are shown as wait list candidates which wait list has been directly sent by the Selection Board to the respective Head Master/Principal and officers of the Education Department, without, taking in confidence the Administrative Department. In absence of issuance of orders by the Administrative Department/Competent authority, petitioners have no case for continuance on the post.

3. Mr. Dar, tenders statement that so for as petitioners 1 and 2 in SWP No. 1628/93, are concerned they have been subsequently appointed by the Department and have joined on the posts for which they are appointed. Therefore, the writ petition have become infructuous, so far as these two petitioners are concerned. His statement is taken on record. Orders accordingly. So the writ, petition is to be treated as live only so far as petitioner No. 3 is concerned. In the other writ petition 1656/93 petitioner’s counsel has not appeared, though Mr. M.I Oadri, submits that the petitioner is neither appointed nor in the service as even explained in the reply/objections filed on behalf of respondents.

4. Petitioners counsel submits that the petitioner No. 3 in SWP No. 1628/93, was brought on the wait list on selection by the Board and his name was forwarded to Headmaster Govt. High School Hardushiva Zaniger Sopore for being allowed to join against class IV post like many other such cases. The petitioner was allowed to join and subsequently on freezing the posts and on issuance of directions by the Commissioner Secretary to Govt. Education Department, he was ousted without being given an opportunity of being heard when the other like situated persons were appointed. He cannot be discriminated against. The Government cannot act arbitrarily to abuse its position.

5. The counsel for respondents, Mr. M.I Qadri, Sr. AAG submits that in this case, petitioners though selected as wait list candidates by the Board, were at no point of time appointed by the competent authority. The appointment orders have neither been issued formally nor communicated to petitioner. Petitioners cannot be said to have been appointed. If the Government through Administrative department has freezed the posts and issued direction not to appoint candidates on reports of wide spread irregularities, the Government cannot be charged with arbitrariness. No question of abuse of powers or colourable exercise of powers arises in this case. The Government is within its rights to take the policy decision not to fill the posts. No right of petitioner has been violated. Therefore, the question of affording an opportunity to the other side does not arise.

6. In Government of Orissa v. Haraprasad Das and Ors., AIR 1998 SC 375, it is observed;

Merely because there were some vacant posts of copy holders and the Director of the press had recommended to the Government to fill up those posts it was not open to the Tribunal to direct the Government to fill up those posts even though it had good reasons not to do so. It should have been appreciated by the Tribunal that mere empanelment or inclusion of one’s name in the selection list does not give him a right to be appointed. So also if the Government decides not to make further appointments for a valid reason, it cannot be said that it has acted arbitrarily by not appointing those whose names are included in the selection list. Whether to fill up a post or not is a policy decision and unless it in shown to be arbitrary, it is not open to the Tribunal to interfere with such decision of the Government and direct it to make further appointments.”

In Shankarsan Dash v. Union of India, AIR 1991 SC 1612, it is observed:

“.. Unless the relevant recruitment rules so indicate, the state is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the state has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons.”

7. It is for the Government to decide how many appointments are to be made. A empanelled select candidate much less a wait list candidate, is not conferred any legal right of appointment to the post. After all it is for the Government of course for appropriate reasons, to decide how many appointments are to be made. The plea of arbitrariness would not apply in such a case. The candidate has not acquired a right merely by being selected and empanelled as wait list candidate. It is for the Government to make or not to make appointment of course for a plausible reasons.

8. From record, it is seen that exact number of vacancies for which the lists were drawn have not been indicated and the selection appears to have been made for supposed or imaginable number of vacancies. Even forwarding the lists to the Principal and Head Masters of the Schools appears, some what unique mechanical and a stereo type exercise.

9. In this case, no appointment orders have been issued or claimed to have been issued by the competent authority. The question of removal or discharge from service would arise only when there is an appointment to a post. In this case, no orders of appointment are passed by the competent authority. Figuring of a candidate on select list as wait list candidate cannot be equated and clothed as an order of appointment by the competent authority. This is even made clear by the Administrative department of Education Department/Officer competent to issue appointment order (s) in terms of the rules. It cannot be said that the petitioners were appointed to class IV post, from which they have been removed by the impugned order. After all removal/dismissal from service pre-supposes appointments to a post.

In K. Jayamohan v. State of Kerala and Anr. AIR 1997 SC 2619, the court observed:

“…5. It is settled legal position that merely because a candidate is selected and kept in the waiting list, he does not acquire any absolute right for appointment. It is open to the Government to make the appointment or not. Even if there is any vacancy, it is not incumbent upon the Government to fill up the same. But the appointing authority must give reasonable explanation for non-appointment. Equally, the Public Service Commission/recruitment agency shall prepare waiting list only to the extent of anticipated vacancies. In view of the above settled legal position no error is found in the judgment of the High court warranting interference.”

10. In Tagin Latin v. States of Arunachal Pradesh, AIR 1995 SC 2121, the appointment to a post or office is observed, to postulate:

(a). a decision by the competent authority to appoint a particular person.

(b). Incorporation of the said decision in an order of appointment, and

(c). communication or the order of appointment to the person who is being appointed.

13. All the three requirements must be fulfilled for an appointment to be effective….”

11. Obviously giving an opportunity for hearing does not arise in such a case when there is no appointment. No legal or fundamental right of the petitioners is violated.

12. In the above view of the matter, the writ petitions are dismissed.

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