Jammu & Kashmir High Court
Ravi Kant Sharma And Ors. vs Mr. M.S. Pandit And Ors. on 6 September, 2004
JUDGMENT V.K. Jhanji, J.
1. This shall dispose of COA(SW) Nos.1-C/2003 and 2-C/2003, and also Robkar(SW) Nos.1-E/2004, 2-E/2004, 3-E/2004, 4-E/2004, 5-E/2004, 6-E/2004, 19-C/2003 and 20-C/2003. Vide order dated 5.3.2004 rule under the Contempt of Courts Act was directed to be framed against G. D. Wadhwa, the then Chairman, J&K Service Selection Board; Mr. Basharat Saleem, the then Secretary, J&K Service Selection Board; Mr. Farooq Ahmed Shah, the then Secretary, J&K Service Selection Board; Mr. J. L. Bhagat, the then Secretary, J&K Service Selection Board; Mr. M. S. Pandit, the then Principal Secretary to Government, Finance Department and Mr. M. A. Lala, Director, Accounts & Treasuries, J&K, Jammu.
2. Upon issuance of the rule, respondents have filed their respective statements of facts. This case has a chequered history. In order to appreciate the controversy involved, it is imperative to notice the facts leading to the initiation of contempt proceedings.
3. The writ petition giving rise to the contempt petitions had arisen from selection for appointments to the post of Accounts Assistant in J&K Subordinate Accounts Service. The Government for filling up 529 posts of Accounts Assistants referred the same to the J&K Service Selection Board for selection.
4. Vide select list dated 10.10.1995, the J&K Service Selection Board forwarded a select list of 470 candidates as per the details hereinbelow:
i.General ! Category 426 ii.Scheduled Caste 43 iii.Scheduled Tribe 01 Total 4705. It deserves to be mentioned at this stage that 44 posts had been kept reserved for Scheduled Tribe Category, but since one candidate was available for selection, 43 posts were carried forward to be filled up in the subsequent recruitment. Likewise, no recommendation was made for 16 posts belonging to Handicapped Category, because the Disability Certificates of the candidates belonging to this category were under process of examination. It is for this reason that the select list for 16 posts was withheld, which, however, was subsequently issued by the J&K Service Selection Board on 14.12.1995, in addition to the original select list of 470 candidates, which was issued on 10.10.1995.
6. It is pertinent to mention herein that after the issuance of select list dated 10.10.1995 some writ petitions came to be filed in Srinagar Wing and Jammu Wing of this Court, challenging the selection process on various grounds. Vide communication dated 5.6.1996 the Finance Department informed the J&K Service Selection Board that 44 selected candidates in the select list of 10.10.1995 have not joined. Pursuant to letter of Finance Department dated 5.6.1996, the Service Selection Board informed the High Court at Srinagar by filing CMP No.2944/97 that 44 left out vacancies are available with the Board because the Finance Department has informed the Board that 44 select candidates have not joined.
7. Two writ petitions being SWP Nos.1602/1995 and 606/1996 in the Srinagar Wing of this Court came to be decided and following directions were issued:
This order will dispose of SWP No.1602/95 and SWP No.606/96. Briefly put the case of the petitioners is that 529 posts of Accounts Assistants had fallen vacant/created in the Department of Director, Accounts & Treasuries. Due process of their selection was made. Out of 529 posts of Accounts Assistants, only 469 posts were filled up by the Board authorities and rest were left out though the process of selection was ma! de for all 529 posts. Petitioners came up with a grievance that sixty posts of Accounts Assistants are still vacant. The contention of the petitioners is that they also be considered against the left out vacancies, because they have been interviewed and they have also participated in written test. It is also contended that out of the selected candidates, so many candidates have not chosen to join. Thereafter, respondents issued fresh advertisement for the post of Accounts Assistants for the left out vacancies. Another writ petition was filed bearing SWP No.606/96, and this court stayed the process of selection in pursuance of new advertisement No.1 of 1996. However, the counsel for the respondent-Board has come up with a fresh CMP stating therein that they have constituted a Committee who will consider the petitioners for the selection against the left out vacancies. Counsel for the petitioners are satisfied with this stand. So both the writ petitions are disposed of finally with the direction to the respondents that the respondents will consider the petitioners for selection against the left out vacancies included newly added petitioners. Stay order already passed by this Court is hereby vacated. In view of this contempt application is not being pressed by the petitioners, so dropped.
8. Pursuant to the aforementioned direction that the respondents in the writ petition shall consider the petitioners, including the newly added petitioners, for selection against the left out vacancies, the Service Selection Board vide Letter No.SSB/J-31/32-4/98 dated 1.1.1998 recommended the selection of 28 candidates against the drop out vacancies in the Open Merit Category. Pursuant to the afore-quoted directions, the Service Selection Board again vide letter No.SSB/J-31/1028-31/98 dated 31.3.1998 forwarded the select list of 3 more candidates, making the selection of 31 candidates against 44 left out vacancies in the Open Merit Category.
9. In another batch of writ petitions filed in Jammu Wing of the High Court, which were cl! ubbed with the lead case being SWP No.934/95, titled, Ravikant Sharma & ors. vs State of J&K & ors, the Writ Court vide its order dated 2.4.1998 gave the following directions:
Briefly stated, the facts are that some posts of Accounts Assistants fell vacant. Process of selection was initiated. Total number of posts which were to be filled were said to be 529, but only 469 posts were filled. These facts are noted in the order passed in SWP No.1602 of 1995 and SWP No.606 of 1996. The further fact is that some 60 vacancies fell vacant. This fact has also been noticed in the order passed in the aforementioned two petitions (SWP No.1602 of 1995 and SWP No.606 of 1996). After noticing the aforementioned facts, the following observations were made by this Court:
However, the counsel for the respondent-Board has come up with a fresh CMP stating therein that they have constituted a committee who will consider the petitioners for the selection against the left out vacancies. Counsel for the petitioners are satisfied with this stand. So both the writ petitions are disposed of finally with the direction to the respondents that the respondents will consider the petitioners for selection against the left out vacancies included the newly added petitioners. Stay order, already passed by this Court is hereby vacated. In view of this, contempt application is not being pressed by the petitioners, so dropped.
10. The facts in this case are similar. There is no justification to not to treat the present petitioners on the same lines as was done in the above two writ petitions. The petitioners in the present petition submit that petitioners in the aforementioned two writ petitions have not only been interviewed, but they have been offered job also.
11. Taking into consideration the aforementioned situation, directions as were given in SWP No.1602 of 1995 and SWP No.606 of 1996 are made in the present petition also. The respondents would take notice of observations quoted.
12. This petition would stand disposed of in the same mann! er as the aforementioned two writ petitions.
13. It be seen that other writ petitions bearing Nos. SWP No.901 of 1995 (Princy Bhat and anr. vs. State of J&K and anr.), SWP No.204 of 1997 (Rakesh Kumar and ors. vs. State & ors.), OWP No.263 of 1998 (Bal Krishan Raina vs. State & ors.), SWP No.364 of 1998 (Suneeta Bhat and ors. vs. State & ors.) and SWP No.429 of 1998 (Parmila Koul vs. State & ors.) have also been listed. They involve similar points.
14. Petitioners are present in person.
15. Mr. R. K. Bhatia along with Mr. Mohani Gupta for the respondent-Board. These petitions are also admitted. With the consent of the parties, these petitions are also taken up for final disposal.
16. Whatever has been said vis-à-vis in writ petition No.934 of 1995 would apply to the aforementioned petitions also. Copy of this order be placed in each files. The respondents to take further action in accordance with law.
17. However, subsequently vide order dated 13.7.1998 in COA(SW) No.17-D/1998, this Court while modifying the earlier direction dated 2.4.1998 in SWP No.934/1995, passed the following order:
M. K. Bhardwaj.
The petitioners submit that the order passed by this Court in SWP No.934 of 1995 has not been complied with. The petitioners have arrayed Chairman, Subordinate Services Selection Board and Chief Secretary of Jammu & Kashmir State as parties to the petition.
18. There is an averment in the petition that the copy of the order referred to above was served on the respondents on 6.4.1998. For this reliance is being placed on Annexure 'B'. Annexure 'B' does not indicate as to what were the contents and what was actually purported to be done in pursuance of Annexure 'B'.
19. It is settled law that unless and until the person(s) who is supposed to comply with the order in question has been made aware of the order, it cannot be said that there is any disobedience muchless wilful disobedience to comply with the directions given by this Court. Thus no case has been made out for initiating action against the responde! nts.
20. The petitioners are at liberty to bring into the notice of the officers who are supposed to comply with the judgment passed by this Court that a judgment has been passed. The concerned Secretary in Finance Department, prima facie is supposed to comply with the directions given by this Court. As such, it would be apt, if the copy of the order passed by this court today along with writ petition and annexure therefof are made available to the aforementioned officers by the petitioners. In case, it is done, then the aforementioned officer would see to it that the order passed by this Court is complied with in the same manner in which respondent-State has complied with the directions contained in SWP No.1602 of 1995 and SWP No.606 of 1996 decided by Srinagar Wing of J&K High Court.
21. Disposed of accordingly.
22. Pursuant to the afore-quoted direction, the Service Selection Board vide No.SSB/J/31/95/171-75/99 dated 22.1.1999 recommended the selection of 13 more candidates against the remaining 13 left out vacancies in Open Merit Category. The Director, Accounts & Treasuries upon receiving the said list directed the selectees to report to Accountancy Training School. In the process all Open Category and Handicapped Category vacancies, except 43 vacancies reserved for Scheduled Tribe Category, referred to the Service Selection Board for selection came to be filled up as per the recommendations of the Board. The Government pursuant to the recommendations of Service Selection Board took follow up action and the selectees were asked to report to Accountancy Training School for training and the appointment orders followed the completion of training.
23. Some of the petitioners who could not be selected filed various contempt petitions in the Jammu Wing of High Court alleging therein that the directions dated 2.4.1998 passed in SWP No.934/95 have not been complied with. Various orders came to be passed in the said contempt petitions from time to time and finally on 25.7.2000 the learned Judge hearing the contempt peti! tions was pleased to recall order dated 2.4.1998 passed in SWP No.934/1995 and the petitioners were directed to array all the appointed persons as respondents. The Secretary, Finance Department was directed to furnish the details thereof and the writ petition was directed to be listed on 31.8.2000 for final orders. In the said proceedings supplementary affidavit was filed by the Service Selection Board stating therein merit position of the candidates, whose names had been recommended in pursuance to the directions of Srinagar Wing as well as Jammu Wing of this Court. It was indicated in the affidavit that against 44 vacancies caused due to the non-joining of open category candidates, 31 candidates have been selected from Srinagar and 13 from Jammu.
24. SWP No.934/1995 along with various contempt petitions came to be finally disposed of on 23.11.2000 and the learned Judge held that the process and manner adopted by the Selection Board was in contravention of Articles 14 & 16 of the Constitution of India, inasmuch as only the persons, who figured as writ petitions were considered and the candidates who had higher merit were not considered at all. The Service Selection Board was directed to examine the merit of the candidates at the time of initial selection and fill the posts within one month from the date of production of copy of judgment to the Board. The learned Judge observed in case this is not done, the petitioners in this writ petition and other writ petitions which came to be decided and regarding which contempt petitions are pending would be entitled to appointment and requisite appointment letters would be issued to them.
25. The State of J&K as well as Service Selection Board filed Letter Patent Appeals before the Division Bench, which were dismissed on 12.4.2001. The Special Leave Petition was also dismissed by the Supreme Court on 25.11.2002 with the following observations:
26. Having regard to the nature of direction given by the High Court to consider the respondent herein as against the left over vaca! ncies, and having heard the learned counsel for the Jammu & Kashmir Service Selection Board, we see no justification for our interference with the said direction. The SLPs stand dismissed.
27. Interim stay stands vacated.
28. The grievance of the writ petitioners in the contempt petitions is that despite direction for consideration of writ petitioners against the left over vacancies, the order has not been complied with, inasmuch as only 13 candidates from Jammu and 31 from Kashmir Valley have been recommended and appointed, and other petitioners, who were also entitled for being considered for selection, have not at all been considered in gross violation of the mandate of this Court. The grievance is that out of 529 vacancies advertised, selection was made only against 470 vacancies, leaving 59 vacancies to be filled up. In addition to this, 44 selectees did not join and, thus, 103 vacancies remained unfilled. Further, according to them, out of 103 vacancies only 44 came to be filled pursuant to the direction given in SWP No.1062/1995, 606/95 and 934/1995, meaning thereby that 59 vacancies remained unfilled and the petitioners ought to have been appointed against those vacancies. The other grievance is that as per direction dated 23.11.2000 given in SWP No.934/1995, the Service Selection Board was to examine the merit of candidates at the time of initial selection and fill the posts within one month and, in case, that was not done, all the petitioners in SWP Nos.1602/95, 606/96, 934/95 and other connected writ petitions were to be appointed. It is said that the Service Selection Board neither examined the merit of the candidates at the time of initial selection nor have appointed the petitioners and, thus, the respondents have clearly violated the directions given by the Court.
29. The next grievance made is that the Service Selection Board had filed an affidavit in SWP No.934/1995 that 60 vacancies were available, but, later on, it was stated that by mistake such a statement was made. It is contended that vide or! der dated 23.11.2000 passed in SWP No.934/1995, the Service Selection Board was asked to explain why wrong stand was taken regarding the availability of vacancies and to explain who had given such an information. It is stated that respondents are taking inconsistent stand from time to time and they deserve to be punished for withholding correct information.
30. On the other hand, the respondents in their respective affidavits have submitted that vide advertisement dated 16.11.1991, 426 vacancies were advertised in the open merit category, 43 in Scheduled Caste Category, 44 in Scheduled Tribe Category and 16 in Handicapped Category. After the process of selection, 426 names were recommended in order of merit in the Open Merit Category. Likewise 43 names were recommended in the Scheduled Caste Category, but only one name was recommended in the Category of Scheduled Tribe as adequate number of candidates were not available in the said category, as a result whereof 43 posts meant for Scheduled Tribe Category remained unfilled, which were to be carried forward to be advertised again. Respondents have further stated that subsequently an advertisement was issued for filling up 43 unfilled posts in the Scheduled Tribe Category and the same were filled in July 2002. In regard to 16 posts belonging to Handicapped Category, respondents' case is that the select list was with held because the Disability certificates of the candidates belonging to this category were under process of examination and on completion of the process, select list in this category was also issued on 14.12.1995 and the Government accordingly made appointments against 16 posts meant for Handicapped Category. Respondents have further stated that as per direction dated 23.11.2000 given in SWP No.934/1995 the select list in order of initial merit could not be prepared since the record of selection being old was not available with the Service Selection Board and so the Service Selection Board was unable to prepare the select list within the time period give! n by the Court. In regard to the alternate direction to recommend the names of petitioners for appointment in SWP Nos.1602/95, 606/96 and 934/95 and other connected writ petitions, the case of Service Selection Board is that the Board can recommend the names only against the vacancies which had been referred to it for selection. Since there was no vacancy available with the Board against whom recommendations for appointment could be made, the Board was unable to carry out the direction, as in the circumstances it was not possible for the Board to make recommendations for appointment. They have further stated that no fresh vacancies were referred to the Service Selection Board by the Government for process of selection and so no contempt muchless wilful has been committed by them. They have further stated that they were not the officers who were at the helm of affairs when the controversy started or when the order came to be passed.
31. Sh. M.A. Lala, presently serving as Director General, Accounts & Treasuries, in his reply, supported by an affidavit dated 14.4.2004 has stated that he joined as Director, Accounts & Treasuries on 30.4.2000 and continued to be so upto 30.9.2003 and from 1.10.2003 he is working as Director General, Accounts & Treasuries. His stand is that in pursuance of the orders/judgments of this Court, the process of selection was initiated by the Service Selection Board on 1.1.1998 and 31.3.1998 at Srinagar and on 22.1.1999 at Jammu, and the selected and recommended candidates had been allowed to join the Accountancy Training School prior to his assumption of the charge of the post of Director, Accounts & Treasuries; that the appointments of candidates selected under the Handicapped Category had also been made prior to his joining; that with the enforcement of J&K Subordinate Recruitment Rules, the mode of selection of Accounts Assistants can be made only by the Recruitment Board and the power of appointment can be exercised only in accordance with and subject to mode of selection whe! n a select list is furnished by the Recruitment Board; that the appointing authority is to issue appointment orders only in accordance with the recommendations made by the Recruitment Board, which alone has been assigned with the task of assessing the merit, suitability, eligibility and performance of each and every competing candidate; that as against 99 unfilled vacancies, 16 vacancies were reserved for Handicapped Category, which were filled pursuant to the recommendations made by the J&K Service Selection Board; that 44 vacancies caused due to non-joining of selected candidates stood filled up on the recommendations of Service Selection Board in compliance to the directions passed by this Court in SWP Nos.1602/95, 606/96 and 934/95; that the vacancies reserved for ST Category also stood filled up pursuant to the recommendations made by the Service Selection Board on 12.7.2002 and, as such, no vacancy in Open Merit Category exists. Further, according to him, he has not done anything which may amount to disregard of the judgment dated 23.11.2000 passed by this Court in SWP No.934/95. He has further stated that there is no aberration on his part, yet he tenders unconditional apology and places himself at the mercy of this Court.
32. The question which arises for consideration is whether order dated 23.11.2000 passed in SWP No.934/95 was capable of being implemented by the respondents and whether the justification/explanation given by them is sufficient or lacking in detail. If answer is in affirmative, it is only then the respondents can be said to have committed the contempt of order/direction of this Court given in SWP Nos.1602/95, 606/96 and 934/95.
33. Vide order dated 23.11.2000 passed in SWP No.934/95, two directions were given to the respondents therein; one to examine the merit of candidates at the time of initial selection and fill the posts within one month from the date of production of copy of judgment in the Board and, second, in case it is not done, the petitioners in the writ petition and! other connected writ petitions, which came to be decided and regarding which contempt petitions were pending, would be entitled to appointment and requisite appointment letters would be issued to them. Apparently the first direction was to the Service Selection Board being the recommending authority and the second direction was to the State being the appointing authority. The State of J&K as well as the Service Selection Board filed Letter Patent Appeals, which came to be dismissed on 12.4.2001. The Special Leave Petition came to be dismissed by the Supreme Court on 25.11.2002. During the period the Letter Patent Appeals remained pending and the SLP came to be dismissed by the Supreme Court, the period of one month, within which the Service Selection Board was directed to examine the merit of the candidates at the time of initial selection had expired. Otherwise too, the stand taken by the Service Selection Board is that the record being old is not traceable and, therefore, it is not possible to prepare the select list as per the merit of the candidates at the time of initial selection. It is well settled that in order to constitute the contempt, disobedience must be willful. Disobedience could be willful only if there is some material to indicate that respondents had the custody or control over the documents of selection and they were in a position to prepare the select list, but willfully did not do it. There is no material on record from which it can conclusively be said that the respondents have willfully and deliberately or contemptuously had not carried out the direction of the Court in preparing the merit list as per the initial selection. Unless a responsibility is fixed on a person responsible for destroying the said record, no action under law can be taken against the respondents or it can be said that they have deliberately not carried out the direction in publishing the select list and recommending the names of candidates for appointment in order of merit. The second direction was to the S! tate Government that in case the select list is not prepared or published, the writ petitioners in SWP Nos.1602/95, 606/96, 934/95 and other connected writ petitions would be appointed. In this regard the stand of Mr. M. A. Lala, presently Director General, Accounts & Treasures, is that as per the recruitment rules he could make appointments only after the names had been recommended of the suitable candidates by the Service Selection Board being the selecting authority. In my view he is right in contending so because the names of writ petitioners have not been recommended by the Service Selection Board and in absence of such recommendations, the Director, Accounts & Treasuries is not empowered to appoint them. Moreover, there has to be posts against which the appointments could be made. All the 529 vacancies advertised in the year 1991 stand filled up pursuant to the recommendations of Service Selection Board and, therefore, the Director General, Accounts & Treasuries cannot be made responsible for not complying with the direction of this Court passed in SWP No.934/95 dated 23.11.2000. It may be true that some of the writ petitioners may have found place in the merit list and in the process may have suffered, but the respondents can be punished for contempt only if this Court finds that there is wilful disobedience on their part. In the facts and circumstances of this case I am unable to hold so and, therefore, the rule issued against the respondents deserves to be discharged. Accordingly it is so ordered.
34. However, the person(s) responsible in destroying the record of selection cannot be allowed to escape. Therefore, though the rule against the respondents is discharged, but the Chief Secretary is directed to refer the matter to the Vigilance Commissioner to hold an inquiry and fix responsibility on the person(s) who may be responsible for destroying the record of selection made pursuant to advertisement dated 16.11.1991.