Jammu & Kashmir High Court
Safina Javeed vs State Of J&K. While on 1 February, 2010
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 2 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 3 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 4 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 5 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. 6 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.7
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 8 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