Jammu & Kashmir High Court - Srinagar Bench
Renu Bala vs State Of J&K And Ors on 24 March, 2011
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA (SW) No. 46 of 2010 CMP No. 74 of 2010 Renu Bala Petitioners State of J&K and ors Respondents !Mr S.C. Mansotra, Advocate ^Mrs. N. Goswami, Advocate Mr. D.C. Raina, Advocate Mr. Sachin Dogra, Advocate Honble Mr. Justice Virender Singh, Judge Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 24/03/2011 :J U D G M E N T:
Jammu and Kashmir Public Service Commission (for short the PSC), a constitutional authority made selections in the year 2007 of suitable candidates for being appointed on the post of Lecturers in different disciplines of Higher Education Department including physics. Petitioner had also responded to the notification issued by the PSC and sought consideration for being selected/appointed on the post of Lecturer in the discipline of physics in open merit category. The PSC prepared selection list and made recommendations to the government vide letter No. PSC/DR/Lect. Physics/HED/2007 dated 22nd of August 2007. The recommendation was to remain valid for a period of one year from the date of issuance of selection list. The PSC notified the selection list vide notice dated 23rd August 2007. The Government while accepting the recommendation of the PSC appointed the selected candidates on the posts, vide government order No. 23-HE-2007 dated 23rd Oct. 2007.
The record produced by the respondents, which is part of the file, reveal that the Principal Government Degree College (Boys Anantnag) informed Director Colleges Higher Education Department Civil Sectt. Jammu vide communication No. DCBA/Sts/08/2501-02 dated 9th Feb. 2008, about the candidates who joined the college in pursuance of the appointment orders and persons who did not join. It was informed that Malik Mohibul Haq who was selected/appointed in the discipline of physics had joined in the college, whereas Farooq Hussain Bhat did not join. The Dy. Secretary to Government Higher Education Department sent a communication to Secretary J&K PSC Srinagar bearing No. Edu-Coll/Coord/125/2008 dated 24th of June 2008, informing him that the persons mentioned in the said communication were appointed at the recommendations of the PSC as Lecturers. It was also informed that the appointment order was hedged with the condition that the appointed candidates should report to the concerned Principal(s) within period of 21 day from the date of issuance of Government order, failing which, appointment shall stand cancelled. It was also informed that the persons mentioned in the said communication have not reported for duties within the stipulated period and request was made to furnish wait list to fill up the posts which remained unfilled on account of non joining of the selected candidates. The Secretary J&K PSC vide his communication No. PSC/DR/WL/Lect/HE/2006 dated 10th July 2008 furnished information to Principal Secretary to Government Higher Education Department about the candidates who were next in merit in the selection list in the respective disciplines. The communication also referred to the fact that this information was being provided in view of non joining of appointed candidate(s) on the post(s) of lecturer(s) in different disciplines. One Smt. Moona Sethi was recommended for being appointed, being next in merit after the last selected candidate in the open merit category in the discipline of physics. The Principal Secretary to Government was also informed that the recommendation will remain valid for a period of one year from the date of issuance of the original selection list in the discipline of physics etc. The recommendation in respect of wait list candidate had to remain in operation only up to 23rd of August 2008. Smt. Moona Sethi was appointed on the post of lecturer in the discipline of physics in open merit category on the recommendation of the PSC as she figured next in merit to the last selected candidate for the reason that Farooq Hussain Bhat did not join on the appointed post viz lecturer physics in the concerned institution.
Claim of the appellant-writ petitioner is that another selected/appointed candidate viz Malik Mohibul Haq after joining the services resigned. The case set up by the appellant-writ petitioner in the writ petition was based on notice dated 13th May 2008 which she claims to have down loaded from the web site of PSC. The said notice provided that the two persons mentioned therein figure next to the last candidate selected, which selection panel was communicated to Govt vide letter No. PSC/DR/Lect. Physics/HED/2007 dated 22.08.2007. It was further mentioned in the said notice that such candidates as per rules may be considered by the PSC for being recommended only once the Higher Education Department specifically reports/recommends that vacancies have occurred on account of non-joining of selectees previously recommended vide aforementioned communication. Smt. Moona Sethi figured at serial No. 1 in the notice, whereas appellant-writ petitioner at serial No.2. The notice concluded as under;
this list of candidates is only for the purpose of information and shall not be, in any case, taken as recommendation for the purpose of appointment. (Annexure B of the writ petition) Appellant-writ petitioner filed writ petition on 3rd Sept. 2008in which she sought following reliefs:-
I) Writ of Mandamus, directing the respondent no.3 to recommend the petitioner for her appointment to the respondent no. 2 on account of her being in the waiting lists issued by the said respondent no. 3 dated 13-05-2008 pursuant in open merit category vide letter no. PSC/DR/LECT. PHSYICS/HED/2007 DATED 22-08-2007;
II) Further writ of Mandamus, directing the respondent no. 1 and 2 to appoint the petitioner pursuant to her being already in the waiting list of open category candidates in higher education for the post of Lecturer for Degree Colleges in the department of physics subject;
III) Any other writ order or direction, which this Honble Court deems appropriate in the light of facts and circumstances of this case be also issued. Writ record reveals that the writ petition was considered by the writ court on 8th Sept. 2008 and following order was passed:
Issue notice. Mrs. Shekhar learned AAG waives notice on behalf of the respondents 1 and 2, therefore, notice shall got to respondent no. 3 only. Steps for his service to be taken within a weeks time. List after service of respondent no. 3.
In the meanwhile, if any vacancy is available on account of non-joining of any selected candidate out of the select list dated 22-08-2007, same shall not be filled up till next date of hearing. (emphasis supplied) The appellant-writ petition set up the case before the writ court that as Malik Mohibul Haq after joining on the post of lecturer in discipline of Physics resigned, so she was required to be considered for being appointed on the said post in view of her merit position.
On notice issued in the writ petition, respondents filed reply affidavit/objections. The PSC sought dismissal of the writ petition in view of the law laid down by the Honble Supreme Court in case titled State of Punjab v. Raghbir Chand Sharma reported in 2002(1) SCC page 113. The writ court after hearing and considering the matter, dismissed the writ petition vide its judgment and order dated 9th April 2010.
The appellant-writ petitioner being aggrieved of the said judgment has challenged the same in this LPA.
We have heard ld counsel for parties. Considered the matter. Ld counsel for the appellant-writ petitioner while referring to the documents placed on writ record submitted that in view of the notice of PSC dated 13th May 2008 wherein petitioner figure at serial No.2, the petitioner has acquired right of being appointed. Ld counsel submitted that in the admitted fact position of this case, Smt. Moona Sethi figured at serial No. 1 in the notice dated 13th May 2008 and was appointed on the post of lecturer in the discipline of physics because of non-joining of appointed candidate Farooq Hussain Bhat, so in view of the resignation tendered by the appointed candidate Malik Mohibul Haq appellant-writ petitioner was entitled to be appointed on the post of Lecturer physics. Ld counsel referred to and relied upon the Division Bench judgment of this court, in case titled Ghulam Ahmed Malik and ors v. State of J&K and ors reported in 2006 (3) JKJ-64 (HC), and submitted that in view of the law laid down by the Division Bench of this Court in Ghulam Ahmeds case (supra) the vacancies which would become available because of non-joining, death, resignation of the appointee within a period of one year from the date of recommendation of the PSC, are to be filled up by appointing candidate figuring in the wait list in order of merit. Ld counsel for the appellant while placing whole hog reliance on the said judgment submitted that because of the resignation of Malik Mohibul Haq the appellant being next in merit was to be appointed on the post of lecturer in the discipline of physics. Ld counsel submitted that, though, Ghulam Ahmeds judgment was pressed into service before the writ court but still the writ petition was dismissed.
Mr. S.C. Mansotra ld counsel for appellant, submitted that the LPA in view of law laid down in Gh. Ahmeds case (supra) deserves to be allowed and consequently direction be issued to respondents to appoint the appellant-writ petitioner on the post of Lecturer in the discipline of physics.
Mr. D.C. Raina ld counsel for the PSC, submitted that the writ petition as also the appeal merits dismissal in view of the law laid down by the Honble Supreme court in Raghbir Chand Sharmas case (supra). Ld counsel submitted that when the government accepted the recommendation of the PSC in respect of selection made by it and appointed the selected candidate(s) on the post(s) notified for such selection, the selection process got concluded and PSC became functus officio. Ld counsel submitted that appellant-writ petitioner has no right to seek direction against the respondents for being appointed on the post. The ld counsel also referred to and relied upon the judgment of Honble Supreme Court in case titled Rakhi Raj and ors v. the High Court of Delhi and ors reported in AIR 2010 932, and submitted that the LPA merits dismissal.
Mrs. Neeru Goswami ld Dy. AG appearing for the state, while supporting the submission of Mr. D.C. Raina sought dismissal of the appeal.
For appreciating the issue raised in its proper legal perspective Rule 57 of J&K PSC (Business and Procedure) Rules 1980 (for short Rules of 1980), relevant para of Raghbir Chand Sharmas case (supra) and Gh. Ahmed Maliks case (supra) are reproduced as under;
57. The decision of the Commission for making appointment by direct recruitment, shall subject to the provisions of Rule 9 and 10, be signed by all the members.
The recommendations of the Commission shall be communicated to the Government by the Secretary. The recommendations shall be valid for a period of one year from the date they are 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 for such extension is made before the expiry of the validity of the panel.
Provided that waiting list of candidates may be drawn upon 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.
After the recommendations for direct recruitment as communicated to the Govt., the Secretary shall intimate individually against clear vacancies the fact of their names having been recommended to the Govt., for appointment. This shall be in Form No.6.
Secretary shall, thereafter, make public the select list and the waiting list by affixing a copy of the same on the Notice Board of the Commission and also by publishing the Government Gazette. This shall be in form No.7 The Honble Supreme Court has in Raghbir Chand Sharmas case (supra) held that once a candidate from the select panel is appointed on the post, the panel ceases to exist and outlives its utility. No one else in the panel can legitimately seek appointment against the post. The Honble Supreme court in this behalf, in para 4 of the judgment observed as under:-
4.we have carefully considered the submissions of the learned counsel on either side, in our view, the judgment rendered by the learned single judge as well as the division bench of the Punjab and Haryana High Court cannot be sustained. As rightly contended for the appellate-state, the Notification issued inviting applications was in respect of one post and the first candidate in the select panel was not only offered but on his acceptance of offer came to be appointed and it was only subsequently that he came to resign. With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and at any rate, 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 orders dated 22.03.1957 in our view, relates to select panels prepared by the public service commission and not a panel of the nature under consideration. That apart, even as per the Circular orders as also the decision relied upon for the first respondent, no claim can be asserted and countenanced for appointment after the expiry of six months. We find no rhyme or reason for such a claim to be enforced before courts, leave alone there being any legally protected right in the first respondent to get appointed to any vacancy arising subsequently, when somebody else was appointed by the process of promotion taking into account his experience and needs as well as administrative exigencies. The Paragraphs 17, 54 to 56 and 58 of the Division Bench judgment in Gh. Ahmed Maliks case (supra) are reproduced as under:-
17. Category-C: These are those appeals where appellants being in the waiting list for the posts of Horticulture Development Officers prepared as such by the Public Service Commission against open and other reserved categories, seek their appointment as Horticulture Development Officers by seeking direction for operating the waiting list against those vacancies which have fallen vacant because of non-
joining, resignation or otherwise of the selected candidates. Some of these appellants seek their appointment against those vacancies, which are stated to be available with the State Government and not yet notified for fresh selection. These appeals are LPASW Nos.426/2002 and 177/2005.
54. The only question which remains to be determined, is as to whether the candidates falling in the waiting list could be adjusted against those notified vacancies which remained unfilled or were vacated because of the death, non- joining or resignation of the selected candidates.
55.Sh. Vinod Bakshi, learned Dy. AG, refers to state of Punjab v. Raghbir Chand Sharmaand another reported as AIR 2001 SC 2900, to urge that the resignation from a post would result in keeping that post open for being filled up in the next selection and that the candidates in the waiting list cannot be adjusted against such post. Sh. Bakshi urged that because one year from the date of appointment and selection has since elapsed so the State cannot be compelled to appoint these candidates after such a long time.
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.
And
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 Public Service Commission for appointment, shall become available to the candidates in the waiting list in the order of merit against their respective categories. Rule 57 interalia provides that decision of the Commission for making appointments by direct recruitment shall be subject to provisions of Rule 9 and 10, the recommendation shall be communicated to the Government by the Secretary; it shall be valid for a period of one year from the date same is communicated to the government which date, however, can be extended for further period of six months on the specific request of the government provided such request is made before the expiry of the validity period of one year; wait list drawn by the commission to be communicated to the government along with all original documents.
Rule 57 (supra) is all inclusive and after the recommendations for selection of candidates are made to the government, the role of PSC by operation of this rule comes to an end.
The purpose for creating constitutional authority viz PSC is to ensure selection of meritorious and suitable candidates for being appointed on different posts. The PSC is charged with most sacred and sacrosanct duty of making selection of meritorious and suitable candidates for being appointed on different posts. The principles enunciated and underlying the Articles 14, 15 and 16 of Constitution will become vibrant and life will be breathed into them by the PSC when selections of candidates are made by it in most fair and impartial manner. The PSC in the backdrop of our constitutional scheme is the repository of the trust which constitution makers have reposed in it. In the matter of public employment, it is the PSC which is catapulted to not only focused position but gets the central place in view of the mandate contained in Article 14, 15 and 16 of the Constitution of India. Any aberration in making selections by the PSC has the potential to boomerang on the basic features of the constitution which provides for equality before law; for equal protection of laws and equal opportunities in the matter of public appointment. The PSC in order to achieve salutary and solemn purpose for which it is created by the constitution, becomes functus officio after recommendations of meritorious and suitable candidates are made by it to the government. In the event after the appointment orders are issued by the government, post becomes available either by non-joining of the appointed candidate or by resignation or death, what is required to be done to fill up such vacancy is the question which begets answer.
People being sovereign are supreme and the document called Constitution of India , which was born from the bosom of constituent assembly, is the supreme document and the organs created by it have to breath and live through it. Among others what is inherent in the people is equality in access to public property, which includes public post available with the government or created by the government. The right of equal opportunity to get appointed on a post inheres in every eligible person on the basis of his/her being member of society which has resolved to form itself into sovereign, democratic and socialist state. In this back drop denial of right of equal opportunity to have access to public post will be destructive of one of the fundamental feature of the Constitution recognized by Article 14 and 16 thereof. Our state is governed by laws and not men. They are only implementing and executing agency. Some features of the Constitution lay at its core and require to be followed with religious commitment and zeal.
It is in the aforementioned back drop the issue raised in this appeal requires to be answered. In the event, the government or appointing authority in the government takes a decision to fill up posts either created by it or held by it, it refers them to the PSC. The PSC makes selection of meritorious and suitable candidates and sends recommendations thereof to the Government. The recommendations are made in respect of the posts referred to it by the government and the PSC may also forward a wait list of the candidates who are next in merit of the last selected candidate, to the Government. After the recommendations of the PSC are accepted by the Government and appointment orders are issued, in the event all appointees joins on the posts, the role of the government in making appointments in respect of those posts which were referred to the PSC, comes to an end. After the event is over in the aforementioned manner, neither the government nor the PSC holds any seizen over the posts excepting to regulate the services in accordance with rules. The entire selection process initiated by the government ultimately culminates in the issuance of appointment orders in favour of the selected candidates. Nothing survives for consideration thereafter either for the PSC or for the government. The selection panel prepared by PSC, dries-up after the selected candidates are sucked up and absorbed by the government in its services. In view of the mandate contained in Article 14 and 16 of the Constitution, the PSC and also the government thereafter ceases to have control on such selection/appointment excepting for regulating the services in accordance with the rules.
However, eventualities may arise by non-joining of the appointed candidate or death of the appointed candidate or resignation tendered by the appointed candidate. A question arises as to which type of vacancy can be supplied during the validity of the selection panel in the afore-stated eventualities. As already stated the government takes a decision to make appointments on posts in different services and for making such appointments posts are referred to PSC for making selection of meritorious and suitable candidates. The number of posts are determined by the government and advertised by the PSC. The selection/appointment is thus to be made in respect of these pre-determined posts and there cannot be any increase or decrease in the number of advertised posts unless such power is reserved by the appointing authority/selection authority while referring the posts to the PSC or while advertising the posts. As already stated that a post available with the government is a public property and all eligible candidates have right to seek consideration for being selected/appointed on the post. When fixed number of posts are referred by the Government to PSC and this fixed number of posts are advertised for making selection thereof by the PSC, selection/appointment can be made in respect of those posts alone by considering all eligible candidates who seek consideration for being selected/appointed on the post(s). After the selection and appointments are made a candidate appointed in sequel to such a selection may not join on the post. The non- joining on the post by the appointed candidate will not conclude the selection /appointment process, in as much as, the advertised post will remain vacant during validity of selection panel. The non-joining of the candidate would give cause in view of the mandate contained in constitution to the appointing authority to consider the candidate from the wait list who is next in merit for being appointed, during validity of the selection panel, for the reason that power of the appointing authority survives in such eventuality as the post is not filled up because of non-joining of the appointed candidate. But in contradistinction thereto, in the event, as already stated, all the appointed candidates join in pursuance of the appointment orders, the power of the government/appointing authority to make appointment thereof comes to an end, and that particular selection process gets concluded by issuance of appointment orders and by joining of all the appointed candidates on the advertised posts. After conclusion of the selection process by joining on the posts by appointed candidates, the PSC as also appointing authority cannot have any role to play in a concluded process. If after joining on the post some appointee resigns, even if such resignation takes place during the validity of the selection panel, it becomes a post available for fresh selection and appointing authority cannot fall back upon the selection list which is non-existent in the eyes of law having been exhausted by the appointment of all the selected candidates. After joining of appointed candidates on all the posts, there being no selection list/wait list available in law, the appointing authority cannot fall back upon on a non-existent list. Same will be the position in the case of the death of the appointed candidate.
The Honble Supreme Court in Raghbir Chand Sharmas case (supra) has in specific terms held that after the selected candidate is appointed and joins on the post, the selection process came to an end and on the resignation of appointed candidate no other person can be appointed from the selection list.
The law laid down by the Honble Supreme Court is binding on all in terms of Article 141 of Constitution of India.
To maintain and preserve the judicial discipline, the writ court is bound to follow the principle of law enunciated by Division bench. In case Writ Court (ld Single Judge) is of the opinion that the view taken by Division bench is not correct view of law, then it has to refer the matter to larger bench. It cannot of its own take a view contrary to that taken by Division bench. Similarly the Division bench has to follow the view on a point of law enunciated at an earlier point of time by earlier Division Bench. In the event, the Division bench feels that view taken on a point of law earlier on is not correct view, then matter is required to be referred to a larger bench.
In order to follow the above principle of law, it is to be ascertained as to whether earlier judgment constitutes a binding precedent in law.
A judgment will constitute binding precedent in law, when an issue is raised, statute and binding precedents cited, case thoroughly debated and properly considered by court and then finding recorded. But where point of law raised, is not considered by the court and judgment of superior court or forum which has enunciated a principle of law is not considered, such a decision will be per- incurrim, binding , parties thereto alone and will not constitute a binding precedent to be followed.
On the touch stone of the principle of law evolved by courts in respect of binding precedent value of judgment in Gh. Ahmeds case supra requires to be considered.
A specific issue was raised in Gh. Ahmeds case (supra) on the basis of law laid by Honble Supreme court in Raghbir Chand Sharmas case (supra) that after the selected candidate joins the post on his appointment, the selection panel gets exhausted and outlives its life and no one else in the panel could legitimately contend that he should have been offered appointment in the vacancy arising on account of subsequent resignation of person appointed from the panel. On the resignation of appointed candidate post become available for future selection and cannot be filled up by appointing candidate from earlier selection panel/wait list. This question of law was not related to the life of selection panel. The aforementioned principle of law enunciated by Honble Supreme Court in Raghbir Chand Sharmas case (supra) on the issue has not been considered by Division Bench in Gh. Ahmeds case (supra). The bench adverted its attention to the life span of selection panel. The said judgment in law will not constitute a binding precedent, but is a judgment rendered per-incurrim. The reliance placed on Gh. Ahmeds case (supra) by ld counsel for appellant is accordingly of no consequence. The writ petition as also appeal merits dismissal.
Yet another facet of the case which has suffered eclipse needs to be brought to light. The selection panel was issued and recommendation made on 22.08.2007 and same had to remain valid for one year. Its life got exhausted on 23.08.2008. The writ petition was filed on 3rd Sept. 2008, which means when selection panel was not in existence. No relief in law could be sought on the basis of non-existent selection panel. Notice dated 13.05.08 was only an information and not recommendation of PSC, no claim in law could be based on it.
The writ petition is based on the notice dated 13th May 2008. The notice specifically provided that it is not recommendation of the PSC. On the touch stone of Rule 57 of Rules 1980, it cannot be said to be a recommendation in law. In the communication of PSC dated 10th July 2008, while recommending the case of Moona Sethi, it was specifically stated that said recommendation will remain valid only for one year from the date of original recommendation viz 22th July 2007. No claim can be based on such notice.
For the above stated reasons, we find no merit in this appeal which is accordingly dismissed. Registry to return record.
(Muzaffar Hussain Attar) (Virender Singh)
Judge Judge
Srinagar
24/03/2011