HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 964 OF 2008 Safina Javeed Petitioners State and others Respondent !S.KShukla, Advocate ^Mrs. Neeru Goswami, Dy.AG for R- 1 & 3. Mr. F.A.Natnoo, Advocate for R-2. Mr. Justice Sunil Hali, Judge Date: 01.02.2010 :J U D G M E N T :
Vide Advertisement notice no.12-PSC of 2006
dated 20.12.2006, respondent no.2 invited
applications from the eligible candidates on a
prescribed form for filling up of various posts of
Lecturers in different discipline including 12 posts of
Political Science in the Higher Education. The break
up of the posts advertised, is as under:-
Open merit : 06
RBA : 03
SC : 01
ST : 01
SLC : 01
Total : 12
Advertisement notification provided two
categories, one meant for in-service category and
other for the direct recruitment from the open
market. The petitioner submitted her application
form for the said post of Lecturer Political Science in
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the open market. She along with other eligible
candidates, was allowed to participate in the
selection process by respondent no.2- Public Service
Commission. The select panel declared by
respondent no.2 vide its Notification No.PSCDR/
Sec./2007 dated 29.08.2007 indicated names of
three persons, who were selected under RBA
category, namely, Muzzafar Ali, Jeewan Lal and
Prem Singh. As a sequel to the selection being
made, the appointment orders were issued vide
Govt. Order No.230-HE of 2007 dated 18.10.2007.
All the selected candidates, who were offered
appointments came to be appointed by the
respondents. One of the selected candidates,
namely, Sh. Muzaffar Ali who was in the RBA
category has resigned from the said post on his
selection to the Kashmir Administrative Service. On
the resignation of said Muzaffar Ali, State made
temporary appointment of one Shri Amit Bhalla on
academic arrangement basis.
The grievance of the petitioner is that
respondents under Rule 57 of the J&K Public Service
Commission (Business and Procedure) Rules, 1980
have to prepare the waiting list of the candidates
along with original recommendations of the selected
candidates while submitting the same to the
Government for issuance of appointment orders.
According to the petitioner, she was next in the
merit, therefore, required to be appointed against
the said post on account of resignation of one
Muzzaffar Ali. It is also contended that the vacancy
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had occurred within the life of the waiting list, which
was to remain in force for a period of one year and
extendable for another period of six months on the
recommendations of the Government. The
respondents did not appoint the petitioner, thus her
right of being considered for appointment to the
post in question, has been violated.
On the other hand, the stand of the
respondents is that mere selection does not give any
right of appointment. The petitioner admittedly did
not make the grade, as such, has no right to be
appointed. It is not in dispute that the respondents
did not prepare any waiting list. However, what is
being contended is that even if the waiting list was
prepared even then the petitioner has no right to be
appointed against the post which has been filled up.
Resignation of the candidate resulted into vacancy
which was required to be filled up by taking recourse
to fresh advertisement. It is only in case where
candidate selected does not join, the panel remains
in operation. Once the panel of the select list is
exhausted by issuing of such appointment orders
and consequently on their joining the panel is
exhausted.
I have heard learned counsel for the parties
and perused the record.
It may be important to mention here that
respondent no.2 was directed by this Court to
submit the merit position of the petitioner.
According to the merit list disclosed before this
court, the petitioner has obtained 49.22 points
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whereas cut of merit in RBA category is 49.86
points, who admittedly could not make the grade in
the selection process.
To examine the contours of the controversy
what is being emphasized by the petitioner is that
resignation/non-joining of the candidate during the
life of the panel would create an obligation on the
Public Service Commission and State to make
appointment from the waiting list according to the
merit. The petitioner has placed reliance on the
judgment of the Division Bench of this Court in case
Ghulam Ahmad Malik Vs. State of J&K. While
dealing with the contention of the learned counsel
for the respondents in the aforesaid case, the
Division Bench of this Court has observed as
under :-
56. We do not agree with Sh. Bakshi for two
reasons:-
1. The judgment cited by learned counsel refers to a
case where the life of a select panel ceases to
exist after the appointment of first person in the
select panel. The ratio of the judgment cannot be
applied to the facts of present case because it is
admitted by the parties that life of the select
panel continues to remain in operation for one
year extendable to another six months on the
requisition of the State Government; and
2. A litigant cannot be compelled to suffer because
of the delay in disposal of his lis. It goes without
saying that in-action by a judicial authority should
not prejudice anyone.
57. This apart, it has been held in State of U.P. V.
Ram Swarup Saroj (supra) that a party who
approaches the Court within the life of the waiting list
cannot be deprived of his right to seek operation of
the waiting list because of non-consideration of his
case within the validity period of the waiting list.
58. We, thus, hold that all those vacancies, which
have fallen vacant because of the non-joining, death
or resignation of the appointees within a period of
one year from the date of the recommendation by the
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Public Service Commission for appointment, shall
become available to the candidates in the waiting list
in the order of merit against their respective
categories.
The Division Bench while examining the import
of the Apex Courts judgment titled as State of
Punjab V. Raghbir Chand Sharma and another
reported in AIR 2001 SC 2900 distinguish the
judgment on an issue that the matter before the
Apex Court was that life of the select list had ceased
to exist after the appointment of first person in the
select panel. The judgment relied upon by the
respondents in State of Punjab Vs. Raghbir Chand
Sharma and another postulates that the select list
was prepared only for one post and panel ceased to
exist and had outlived its utility and no one else in
the panel could legitimately contend that he should
have been offered appointment either in the vacancy
arising on account of the subsequent resignation of
the person appointed from the panel or any other
vacancy arising subsequently. The following are the
observations made by the Apex Court in the
aforesaid judgment:-
With the appointment of the first
candidate for the only post in respect of which
the select panel was prepared, the panel
ceased to exist and has outlived its utility and
no one else in the panel can legitimately
contend that he should have been offered
appointment either in the vacancy arising on
account of the subsequent resignation of the
person appointed from the panel or any other
vacancies arising subsequently. The circular
order dated 22.03.1957, relates to select
panels prepared by the PSC and not a panel
of the nature under consideration herein. That
apart, even as per the said circular, no claim
can be asserted and countenanced for
appointment after the expiry of six months.
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The import of the judgment of the Apex Court
refers to a panel prepared by the State Government
who invited applications for making appointment to
the post of Assistant Advocate General. It further
contemplates that circular relied upon by the
petitioners in the said case was to remain in force
for a period of six months and not beyond that. The
important observation made by the Apex Court is
that the circular relied upon by the writ petitioners
relates to the panels prepared by the PSC and not
the panel prepared by the State.
The import of the aforementioned judgment is
that selection process of the Assistant Advocate
General was initiated by the State Government and
not by the PSC, which provided that a panel has to
remain in force for a period of six months. In the
case in hand, selection process has been initiated by
the PSC and the Rule 57 clearly contemplates that
the select list prepared was to remain in force for a
period of one year from the date it is communicated
to the Government. The validity period of one year
can, however, be extended for a further period of six
months on specific request of the Government if the
request of such extension is made before the expiry
of the validity of the panel. Rule further provides
that the waiting list of the candidates may be drawn
up by the Commission and communicated to the
Government, along with the original
recommendations, to the extent to be determined
by the Commission in each case.
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The aforesaid rule clearly envisages two
situations, one that select list has to be prepared
along with waiting list which is required to be
submitted to the Government; secondly, the
recommendations of the Commission has to remain
in force for a period of one year, extendable by
further period of six months on specific request of
the Government.
The object and purpose of preparing the select
list along with waiting list is to ensure that no
selection process so initiated is lost on account of
Government failure to make appointment on the
basis of said list. The purpose is to ensure that duly
selection process is brought to its logical conclusion,
for which life of the panel is provided as one year.
After the expiry of the period of one year, panel
ceases to exist and fresh recruitment is required to
be done so as to ensure that process of making
selection does not impede the rights of the person
who have acquired their eligibility during this period.
Contingency may arise during the subsistence of the
life of panel where candidate may not join or die or
resign after joining leaving the vacancy unfilled.
There is obligation on the part of the respondents to
make appointments of the candidates from amongst
the waiting list on the basis of their merit. The
respondents are under an obligation under rules to
offer this appointment to the person in the waiting
list otherwise very purpose of framing Rule 57 would
be defeated. The select list has to remain in force for
a period of one year and object cannot be destroyed
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while refusing to make appointment from within the
waiting list in case of any contingency as indicated
above, which may arise. The stand of the
respondents is that once the appointment is made,
the panel gets exhausted, cannot be accepted as
there is no such contingency provided under the
rules that select list can be operated only in case of
non-joining of the candidate and not in the event of
death or resignation.
In view of the above, while concurring with a
view taken by the Division Bench of this Court, I
allow this writ petition and direct the respondent-
PSC to recommend the name of the petitioner to
respondent no.1 for appointment as Lecturer in
Political Science against the post fallen vacant due
to the resignation of one Muzaffar Ali provided she is
next in the merit, within one month who shall
consider the same and pass appropriate orders
within one month thereafter.
Disposed of along with connected CMP(s), if
any.
(Sunil Hali)
Judge
Jammu
01.02.2011.
Madan
