Jammu & Kashmir High Court
State Of J And K And Ors. vs Dr. Pawan Kumar Gupta on 25 April, 2006
Author: J.P. Singh
Bench: J.P. Singh
JUDGMENT
B.A. Khan, C.J. (A)
1. This appeal is directed against Writ Court judgment dated 6.9.2004, allowing respondent's writ petition, SWP No. 99/2003, and directing appellant to consider the respondent for appointment against the post of Lecturer of Bio-Chemistry in Health and Medical Education Department, un-influenced by the refusal of Public Service Commission to extend the validity period of the select panel.
2. The appeal raises an important issue, viz. whether an Open Merit candidate could be considered and appointed against a reserved Scheduled Tribe category post in the facts and circumstances of the case.
3. The matter is embroiled in the jungle of facts. The Public Service Commission issued Notification No. 4-PSC of 1998 dated 31st March, 1998, inviting applications for two posts of Lecturers in Bio-Chemistry in Health and Medical Education Department, one in the Open Merit Category and the other in Scheduled Tribe Category. Respondent was a candidate for the post in Open Merit Category and one Shaista Goni in the Scheduled Tribe Category. The Commission completed the selection process and issued a select list on 21.10.1999, recommending one Subhiya Majid for the post in Open Merit category and placing the respondent at serial No. 1 in the wait list of this category. Consequently appointment was made for the advertised one post in Open Merit category, but no recommendation was made by the Commission for the Scheduled Tribe category post because of some pending litigation launched by the contender Shaista Goni. This post, thus, remained unfilled and is at the centre of controversy, with respondent, though an open merit category candidate, laying claim on this post on the strength of Rule 11(2) of the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979. It emerges that when this post remained stuck in the Commission, the Medical Education department requested the Commission vide communication-dated 3.12.1999 for lifting the restriction on this post so that the next candidate on the select panel could be appointed against the available vacancy in the interest of patient care as well as teaching of students undergoing training in the Medical College. The Commission replied to this communication and wrote back to say that the petition of Shaista Goni had been finally decided and her result showed that she was not suitable for appointment even by relaxed standards and that the Administrative department could now take necessary action for filling up the post under rules.
4. Perhaps taking cue, respondent made a representation on 4.11.2000 to the appellants for his appointment against this post. He subsequently filed a writ petition, SWP No. 583/2001, for considering him against the reserved ST category post. This petition was decided on 9.4.2002 and since respondent sets much store by this, it would be advantageous to extract the operative portion of this decision, which reads:
The argument put across by the petitioner that as the candidate from the reserved category was not available therefore the vacancy should go to the general category has also been considered. So far as the issue of reservation is concerned, this rule is covered by Rule 11 of the J & K Medical Education (Gazetted) Service Rules, 1997. This rule was commented upon in a writ petition bearing OWP No. 321/2k, entitled Tulsi Dass v. State and Ors. Therefore this limited aspect would be considered by the respondents at their own level. However, as indicated above, no writ of mandamus can be issued. The petitioner submits that he has already made a representation, as such State is left free to consider the claims and nothing said in this judgment would stand in the way of petitioner.
5. As can be seen from perusal of this, respondent's writ petition was disposed of in terms of the decision in some allied writ petition OWP No. 321/2K, which was perhaps dealing with Rule 11 of J & K Medical Education (Gazetted) Rules, 1979 and Rule 13 of Jammu and Kashmir Reservation Rules of 1994 (SRO 126). Whether respondent can draw any support for his case from judgment in OWP 321/2K, would be adverted to later.
6. It again appears that this respondent made a fresh representation to appellants, seeking his appointment against this reserved category post. His case is said to have been recommended by the Principal of Government Medical College. But it was not considered by the appellant for the reason that the life of the select panel had meanwhile expired on 20.10.2000. The appellants sought extension of life of this panel which was turned down by the Public Service Commission vide letter dated 18.10.2002, under Rule 56 of its Business and Procedure Rules, 1980, which required extension to be sought before the expiry of the validity period of one year, but which was sought after one and a half year.
7. Respondent filed second writ petition, SWP 99/2003, to challenge this letter of Public Service Commission. He accordingly sought twin relief's of quashing this letter/order and for directing the appellant to appoint him against this controversial post of Lecturer in Bio-Chemistry. His case before the Writ Court was that this order of the Commission was arbitrary bereft of any reasons and that now there was no legal impediment for appointing him against the post once it was released by the Commission. It was also pleaded by him that he had completed 45 years of age as on 18.8.2002 and thus could not participate in any selection process in future.
8. Admittedly this writ petition was not contested by the appellant-State as no counter/reply was filed by it to the writ petition. It was, however, resisted by the Public Service Commission by explaining that one post in Scheduled Tribe category remained un-filled because the only candidate in that category was in-eligible and was later interviewed and found not suitable and that respondent's request for extension of life of the select panel was not approved as it was not made during the currency of the select list and was made one and a half year thereafter.
9. It was in this scenario that Writ Court considered the question whether Public Service Commission had rightly or wrongly refused to extend the life of the select list and whether respondent was entitled for consideration of his appointment to this post of Lecturer in Bio-Chemistry.
10. The Writ Court, after examining Rule 57 of J & K Public Service Commission (Business and Procedure) Rules, 1980, held that Commission was justified in declining the request of appellant for extending the life of the select list. The Court, however, took a view that this would not disentitle the respondent from consideration for appointment to the post in question.
11. It would be interesting to reproduce the relevant portion of the judgment to appreciate the reasoning adopted by the Writ Court in this regard:
It is a settled principle of law that a person merely selected for a post does not acquire a right for appointment, such selectee has a right to compel appointing authority not to travel outside the list for making appointments and to make appointments strictly in the order the candidates have been placed in the select list (refer AIR 2002 SC 1885). The selected candidate acquires the right of consideration for appointment in the order of his merit in the select list, the moment the select panel is operated upon. A select panel prepared by the Commission and submitted to the Government remains alive for a period of one year extendable by a further period of six months. So long as the panel is alive, it remains the prerogative of the Government to operate the same and make appointments in accordance with the panel or to allow it to lapse. If the Government chooses for not operating the panel, no selected candidate can insist under law for appointment. But once the Government operates the panel and make some appointment out of the panel then the other candidates selected acquire a right to seek appointment if the vacancy for which the panel has been prepared is available. Once such right gets vested in a selected candidate then there cannot be any question of expiry of the panel. In my considered opinion, limitation prescribed by Rule 57 of the J&K Public Service (Business & Procedure) Rules, 1980 for the validity of the select panel refers only to that panel which has not been operated upon by the Government at all for the reason that selected person does not acquire a right to be appointed merely because of his selection in the panel. But when the panel is operated upon within the period of its validity and some selected person is appointed then the other selected candidates also acquire a right of consideration for appointment for the available vacancies for which the panel has been drawn and in that case the right of such candidate cannot be defeated by the Government by not according consideration to the case of such candidate for appointment. Once the panel submitted by the Commission is acted upon may be partially, it cannot lapse because Rule 57 shall have no application. The bar of Rule 57, in my opinion, applies to the select panel as a whole and not in part. In the instant case, the name of the petitioner was existing in the wait list of the panel. The panel submitted by the Commission was operated upon by the Government within the period of its validity by giving appointment to Mrs. Subhiya Majid in the open category. The other post under ST category was not filled up due to court cases. The candidate, Ms. Shaista Goni for the post under ST category was not found suitable for appointment. So the Commission by its letter dated 10.03.2000 informed the Government that its Administrative Department may take necessary steps for filling up the post under rules. Thus the vacancy of the post under ST category became available for being filled up.
The petitioner was in the wait list as a general category candidate. The post under ST category was required to be deemed de-reserved due to the non-availability of the ST candidate in view of the provision contained in Rule 11 of Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979, as was held by this Court in the writ petition of the petitioner, OWP 583/2001 and writ petition No. 321/2000. The case of the petitioner, therefore, was required to be considered by the Government against the de-reserved vacancy, there being no legal requirement for the Government to seek extension of the validity of the period of select panel. The Government is, therefore, in the circumstances is bound to consider the case of the petitioner un-influenced by the refusal of the Commission to extend the period of validity of the panel against the available vacancy.
12. Respondent followed this up by filing contempt petition COA(SW) 102/2005 on 27.7.2005. The appellant, however, passed Order No. 657-HME of 2005 dated 6.12.2005, rejecting respondent's claim and has also filed this appeal, calling in question the judgment of the Writ Court dated 6.9.2004. All what is stated in appellant's appeal is that the matter was referred to the General Administration Department, which had pointed out that Rule 11 of J&K Medical Education (Gazetted) Rules, 1979, stood superseded by SRO 126 and under its Rule 13 the post was required to be carried forward, on which basis respondent's claim was rejected by order dated 6.12.2005. The appellant had also filed an appeal against the judgment dated 6.9.2004 passed in OWP No. 312/2K titled Tulsi Dass v. State and Ors. and this appeal was being contested on the ground that there were contradictory judgments in operation.
13. Learned Counsel for the parties have also filed written submissions. The submissions filed by appellant's counsel has raised new issues, viz. whether Rule 11(2) of Medical Education (Gazetted) Rules, 1979 negates the carry forward rule contained in Rule 13 of SRO 126 dated 28.6.1994 and whether Rule 11(2) overrides the provisions of Article 15(4), 16(4a) of the Constitution.
14. Learned Counsel for the respondent, in his written submissions, has pleaded that once the appellant had accepted the judgment of the Writ Court in respondent's first writ petition SWP No. 583/2001, in the first round of litigation, which had attained finality, it was no longer available to the appellant to re-open the issue involving interpretation of Rule 11(2) of Medical Education (Gazetted) Service Recruitment Rules, 1979 or Rule 13 of SRO 126. It is also submitted by him that if a fresh look to interpret the import of Rule 11(2) was permissible in the facts and circumstances of the case, the provisions of this rule should be interpreted liberally and it should be held that the reserved category post, which could not be filled because of non-availability of suitable candidate, shall be made available for being filled up in the same recruitment by the available candidates in the select/wait list panel.
15. The appellant's attempt to rack-up new issues, calling for interpretation of provisions of Rule 11(2) of Medical Education (Gazetted) Service Recruitment Rules, 1979 or Rule 13 of Reservation Rules, and seeking to remove any conflict in the operation of the rules, is uncalled for because the parties contest, at no stage had involved this issue. This seems to be an after thought by the appellant, which need not draw this Court in determining these new issues. We, accordingly, refrain from embarking on such determination, which would render this lis un-ending and encourage the State-appellant to raise issue after issue at its convenience.
16. Coming to the crux of the matter, we find that the controversy on the basic issues has been mis-directed at one stage or the other. The focal point in our view was whether this respondent, an Open Merit category candidate, was liable to be considered against the Scheduled Tribe reserved category post of Lecturer in Bio-Chemistry for which post no recommendation could be made by the Commission and no appointment could follow under Rule 11(2) of the relevant Rules.
17. It is a common ground that this respondent was an Open Merit category candidate and was seeking consideration against one post of this category, for which recommendations were made by the Public Service Commission on 21.10.1999 and on which the selected candidate Subhiya Majid was appointed. This respondent could not be selected and had to remain content with figuring in the waiting list at serial No. 1. It is also matter of record that recommendation/selection/appointment to the other Scheduled Tribe category post could not be made because of some litigation launched by the candidate for this post, Shaista Goni. It was only after that litigation had ended and the candidate against this reserved category post (Shaista Goni) was considered and found not suitable that Public Service Commission had released the post and had asked the appellant to proceed in the matter in accordance with rules. So this was not a case of non-availability of sufficient number of candidates for filling up this post, which could have attracted Rule 11(2) of Medical Education (Gazetted) Service Recruitment Rules, 1979. On the contrary, it was a case where recommendation/selection for the post could not be made because of litigation and later because of non-suitability of the litigating candidate and, therefore, any claim based on invoking of Rule 11(2), which provides for lapsing of reservation in case of non-availabvility of sufficient number of candidates, had no basis.
18. It would be appropriate at this stage to refer and to reproduce Rule 11(2) of the Medical Education (Gazetted) Service Recruitment Rules, 1979, which reads:
If a sufficient number of candidates belonging to the classes for whom reservation has been made, are not available for filling up all or any of the vacancy reserved for them during a recruitment period, reservations for the posts not so filled shall lapse and the posts shall be filled up as if no reservation therefore had been made.
19. The pre-requisite for operation of this rule is non-availability of sufficient number of candidates belonging to the class for which reservation had been made. It is only on this that other consequences like lapsing of reservation etc. follows. Such lapsing also cannot be treated to be automatic. It would first require to be ascertained and found first whether sufficient number of candidates was or was not available and it would be only on such determination that the reservation for the post would bed eclared to have lapsed, for which an order would have to be passed by the competent authority, which would have the consequences of releasing the post from the reserved category. And once this post is so released or once the reservation lapses, this post, by any ordinary logic, becomes available for selection from amongst the eligible candidates. In other words, after its lapse/release, all eligible candidates would acquire a right of consideration against this post and there is no way to fill up this post from any wait list candidate and that too of open merit category, because that candidate possesses a right of consideration and selection against the post for which he had applied and not against the post which later became available because of lapsing or de-reservation. Therefore, such a candidate cannot invoke any right of consideration against the de-reserved post merely because he figures on the wait list of Open Merit category and deprive all other eligible candidates from consideration for selection/appointment to the de-reserved post.
20. The position is far worse in the present case because respondent had even ceased to be on the wait list, which had expired on 20.10.2000. He was consequently left with no locus or crutches to lay a claim on any available post much less a reserved category post, the reservation of which had not lapsed nor had it been de-reserved on the date of expiry of the life of the wait list.
21. It would be appropriate in this regard to advert to the reasoning of the Writ Court to keep alive the respondent's right of consideration, despite extinction of the wait list. This reasoning makes an interesting reading and some how concludes that where the select panel is operated for appointment, it would remain alive and there is no question of its expiry because other selected candidates also acquire a right of consideration for appointment against the post for which this panel had been drawn. We fail to appreciate the logic behind this reasoning, which, if accepted, would keep the select or waiting panel alive for all times to come merely because it was operated for selection/appointment of one or more candidates. This also goes against the settled legal position because the select/wait list remains alive only for the validity period, whether it is operated or not, and once its life expires, it cannot be acted upon. We, therefore, record our respectful disagreement with the view taken by the Writ Court that the Wait List/Panel on which respondent figured would remain alive in-spite of its having expired on 20.10.2000 and in disregard of the Public Service Commission having refused to extend its life. The panel, on the contrary, would cease to exist on the expiry of one year and respondent would also cease to figure on the panel on this date and would have no locus or right to seek any consideration for appointment against the post that becomes available after the expiry of the life of the wait list.
22. We are also not impressed by the submission of learned Counsel for the respondent, Mr. Sakal Bhushan, that since appellant had accepted the Writ Court judgment in respondent's first writ petition, SWP 583/2001, and had not taken any appeal against this, therefore, supersession of Rule 11(2) of the Medical Education (Gazetted) Service Recruitment Rules, 1979, to him cannot be re-opened.
23. We have seen the judgment passed by the Writ Court in respondent's first writ petition on 9.4.2000 and it grants nothing more than liberty to the appellant to consider his claims and all that it says about Rule 11(2) is that it was commented upon in some allied writ petition, OWP No. 321/2K. We have also examined the judgment in OWP 321/2K filed by one Tulsi Dass Langey and even this does not lead us to any view which could be taken in support of the respondent rendering him eligible for consideration and appointment to the post falling in reserved ST category. Therefore, it is not a case where this Court had specifically directed the appellant to appoint the respondent against the post in question, in his first writ petition, against which appellant had taken no appeal and, therefore, was to be held bound by it and estopped from re-agitating the issue.
24. We, resultantly, hold that respondent, being an Open Merit candidate and figuring in the wait list of that category, had no automatic right of consideration for appointment against the Scheduled Tribe reserved category post, for which selection could not be made by the Public Service Commission, first due to some litigation and later because of non-suitability of the candidate. His reliance on provisions of Rule 11(2) of the Medical Education (Gazetted) Service Recruitment Rules, 1979, was also misplaced because it was not a case of the reserved category post in question remaining unfilled because of non-availability of sufficient number of candidates. His case for any consideration had become totally hopeless after the expiry of the life of the waiting list on which he figured even if any right of consideration was granted to him out of way. It is further held that the reservation of the post does not lapse automatically under Rule 11(2) of the Rules because such lapsing would occur on satisfying the requirements of the Rule and once the post is de-reserved it becomes available for consideration to all eligible candidates and not to a waiting list candidate only.
25. This appeal, accordingly, succeeds though for different reasons. The impugned judgment dated 6.9.2004 is set aside and writ petition of the respondent dismissed.