Jammu & Kashmir High Court - Srinagar Bench
Aabida Mumtaz & Anr vs State Of J&K & Ors on 28 March, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 17.03.2022
Pronounced on:28.03.2022
SWP No.2655/2013
AABIDA MUMTAZ & ANR ... PETITIONER(S)
Through: Mr. Z. A. Qureshi, Sr. Adv. with
Mr. S. H. Thakur, Advocate.
Vs.
STATE OF J&K & ORS. ...RESPONDENT(S)
Through: None for R-1.
Mr. M. Y. Bhat, Sr. Adv. with
Mr. Furqan, Advocate-for R2 & R3.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) Petitioners have challenged order dated 28.03.2013, whereby respondents have withdrawn the advertisement notice dated 28.04.2008 inviting applications for various posts including 25 posts of Accounts Assistants. Challenge has also been thrown to the advertisement notice No.10 of 2013 dated 17.12.2013, whereby, inter alia, aforesaid posts have been re-advertised by the respondents. A further direction has been sought by the petitioners upon the respondents commanding them to relax age bar in favour of petitioner No.1 and to treat her application submitted pursuant to the advertisement notice dated 28.04.2008 against the advertisement notice dated 17.12.2013.
2) The case set up by the petitioners is that in the year 2008, respondents issued advertisement notice No.05 of 2008 dated SWP No.2655/2013 Page 1 of 7 28.04.2008, inviting applications for various posts including 25 posts of Accounts Assistants in the pay scale of Rs. 4000-6000/. The petitioners being eligible in terms of the prescribed criteria responded to the said advertisement notice. However, the selection process was not taken to its logical conclusion by the respondents and ultimately when petitioners made enquiries from the respondents, they came to know that in terms of order dated 28.03.2013, the aforesaid advertisement notice has been withdrawn. It is alleged that the order of withdrawal was not made public by the respondents.
3) It is also averred that vide advertisement notice No.10 of 2013 dated 17.12.2013, applications were invited from the eligible candidates in respect of various posts including aforesaid 25 posts of Accounts Assistants. However, by then petitioner No.1 had become ineligible having crossed the age bar whereas petitioner No.2 has been subjected to larger competition.
4) The petitioners have challenged the action of the respondents on the ground that no reasonable explanation has been offered by the respondents while withdrawing the advertisement notice of the year 2008 and that the plea of respondents that the same has been done for the administrative reasons cannot be accepted without specifying those administrative reasons. It is further contended that the action of respondents in withdrawing earlier advertisement notice and issuing a fresh advertisement notice is malafide and arbitrary in nature, inasmuch SWP No.2655/2013 Page 2 of 7 as at the time of issuance of advertisement notice in the year 2008, some of the blue eyed candidates of the respondents were not eligible.
5) Respondents have filed reply/objections to the writ petition. In their reply, it is submitted that the advertisement notice of the year 2008 was withdrawn by the University in respect of all the posts and the post for which the petitioners have applied has not been singled out. It is contended that the decision in this regard was taken in terms of Memo No.Au/Adm(R&C)2013/29206-259 dated 28.03.2013. It is also averred that the notice of withdrawal of posts was published in the newspaper Daily Greater Kashmir on 31.03.2013 and was also uploaded on website of the University. According to respondents, the advertised posts were borne on non-plan for which funds are being provided by the State Government but because funds were not made available by the State Government to the University for several years, as such, the advertisement notice was withdrawn.
6) Another reason for withdrawal of the advertisement notice that has been assigned by the respondents is that mode of appointment for non- teaching posts which includes the posts of Accounts Assistants was changed to fixed salary mode as per the decision of the State Government and, as such, the selection process pursuant to the advertisement notice of the year 2008 could not be taken forward as the posts advertised vide the aforesaid advertisement notice were carrying graded scale of pay. It is further contended that as per condition No.(5) SWP No.2655/2013 Page 3 of 7 of the general conditions of the advertisement notice of the year 2008, the University reserved the right to defer filling up of any or all the posts advertised without assigning any reason.
7) I have heard learned counsel for the parties and perused the pleadings and material on record.
8) The main thrust laid by Mr. Z. A. Qureshi, learned Senior counsel appearing for the petitioners, is on the argument that it may be open for the State or any other authority to withdraw the advertisement notice and re-advertise the posts but for doing so, there must be some plausible reasons. According to learned Senior counsel, there were not plausible reasons available to the respondents in the instant case nor have they placed any material on record to justify their action. In support of his contention, the learned counsel has relied upon the judgments of the Supreme Court in the case of Shankarsan Dash v. Union of India, (1991) 3 SCC 47, and Asha Kaul (Mrs.) and another v. State of J&K & others, (1993) 2 SCC 573.
9) On the other hand learned counsel for the respondent University has contended that the petitioners merely by responding to the advertisement notice did not acquire any vested right of appointment to the posts applied for and that the University was well within its rights to withdraw the advertisement notice and issue fresh advertisement notice in view of the administrative reasons which have been specified by the respondents in their reply.
SWP No.2655/2013 Page 4 of 7
10) Before testing the merit of the rival contentions urged by the learned Senior counsel appearing for the parties, it would be apt to notice the legal position as regards the right of a candidate to challenge the action of the State or any other authority whereby advertisement notice inviting applications for certain posts has been withdrawn or selection has been abandoned.
11) In Shankarsan Dash v. Union of India(supra), the judgment relied upon by learned Senior counsel appearing for the petitioners, it has been clearly laid down by the Supreme Court that a candidate does not acquire a right to be appointed against a vacancy by mere inclusion of his name in the selection list.
12) In Asha Kaul (Mrs.) and another v. State of J&K & others(supra), it has been categorically laid down by the Supreme Court that mere inclusion of a candidate in the select list does not confer upon the candidate an indefeasible right to appointment.
13) In Rash Pal Singh & Ors. Vs. Kamal Kishore & Ors, 2017 (2) JKJ 537[HC], 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 SWP No.2655/2013 Page 5 of 7 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.
14) In the face of the aforesaid legal position, it is clear that a candidate has no right to challenge the action of State or any other authority whereby an advertisement notice has been withdrawn or the posts have been re-advertised. In fact, in the instant case only an advertisement notice was issued by the respondents in the year 2008. The selection process, admittedly, did not take off thereafter. It is a settled law that a right to be considered crystalizes only after a 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. In the instant case, the petitioners were not event empaneled. Therefore, they have no right to challenge the decision of the respondents to withdraw the advertisement notice.
15) It has been vehemently contended by learned counsel for the petitioners that even if the respondents had a right to withdraw the advertisement notice and issue a fresh advertisement notice but they could do so only after assigning plausible reasons. If we have a look at the reply filed by the respondents, they have disclosed two reasons for withdrawing the earlier advertisement notice; one that the posts advertised were non-plan posts and funds were not provided by the SWP No.2655/2013 Page 6 of 7 Government during these years and secondly the advertisement notice issued in the year 2008 was in respect of posts which carried graded pay scale whereas in terms of the State Government decision, the policy underwent a change and the posts had to be re-advertised by providing that consolidated salary would be paid for these posts. Both the reasons assigned by the respondents for withdrawing the earlier advertisement notice appear to be plausible and in any case this Court in exercise of its writ jurisdiction cannot sit in appeal over the reasoning given by the respondents, particularly when there is nothing perverse in the reasons assigned by the respondents.
16) For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed.
(SANJAY DHAR) JUDGE Srinagar 28.03.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
SWP No.2655/2013 Page 7 of 7