Jammu & Kashmir High Court - Srinagar Bench
Danish Zia Bhat & Ors. vs State And Others on 3 May, 2018
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
Serial no. 34
Regular (On Board)
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP no. 670/2017
MP no. 01/2017
MP no. 02/2017
Date of order: 03.05.2018
Danish Zia Bhat & Ors. v. State and others
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Appearing counsel:
For Petitioner(s): Mr Z. A. Shah, Sr. Advocate with Mr. A.
Hanan, Advocate
For respondent (s) Mr Q. R. Shamus, Dy.AG
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. By the instant petition, the petitioners seek the writ of mandamus to the effect that; i) respondents be directed to make waiting list of Junior Engineers (Civil) operable by or before 12.05.2017 upon resignation of certain candidates; ii) respondents be directed to keep the 'select list' of the Junior Engineers notified in terms of communication No. SSB/Secy/Sel/2016/PWD/12133-39 operable and live to enable the petitioners to join as Junior Engineers consequent upon the resignation of selected candidates; iii) respondents be directed to expedite the process of SWP no. 670/2017 Page 1 of 14 appointment of Assistant Engineers in particular those mentioned in paragraph no. 6 of the writ petition before the expiry of the selection list and operate the waiting list to the extent of petitioners. The above prayers are made on the strength of the pleas raised in the writ petition which are briefly taken note of hereinbelow.
2. Petitioners, being eligible responded to the Notification No. 02 of 2014 dated 30.12.2014, issued by the Service Selection Board, for filling up the posts of Junior Engineer (Civil) with the following break-up:
OM = 133 RBA = 47 SC = 23
ST = 20
ALC = 07
OSC = 05
2. The selection process was initiated and it culminated into the issuance of selection list in terms of communication No. SSB/Secy/Sel/2016/PWD/12133-39 dated 29.04.2016 and the petitioners find their place in the waiting list. The selected candidates were subsequently appointed also in terms of Government Order No. 173-PW (R&B) of 2016 dated 25.05.2016.
3. The State Public Service Commission vide Notification No. 11- PSC (DR-P) of 2013 dated 28.06.2013, invited applications for the post of Assistant Engineer (Civil) in Public Health Engineering/Irrigation and Flood Control Department. The total number of posts notified were 41 with the following break up:
OM = 24 RBA = 08 SC = 03
ST = 04
SWP no. 670/2017 Page 2 of 14
ALC = 01
SLC = 01
4. The aforesaid notification was followed by another notification of the Commission bearing No. 18-PSC (DR-P) of 2013 dated 15.10.2013. In terms of this notification, applications for the post of Assistant Engineer (Civil) in Public Works (R&B) Department were notified. The total number of notified posts was 76 with following break up:
OM = 43 RBA = 15
SC = 07
ST = 08
ALC = 02
SLC = 01
5. The aforesaid two notifications were followed by third notification bearing No. 01-PSC (DR-P) of 2015 dated 05.01.2015. In terms of this notification, applications were notified for the post of Assistant Engineer (Civil) in Public Works (R&B) Department. The total number of posts advertised were 35. The break up of these posts was as follows:
OM = 20 RBA = 07
SC = 02
ST = 03
ALC = 02
SLC = 01
6. After these notifications were issued, several of the eligible candidates responded to these notifications. A Common Written Test was conducted by the Commission and thereafter candidates short listed for the Viva Voce Test were notified. After the Viva Voce Test was conducted, the Commission notified the list of selected candidates and SWP no. 670/2017 Page 3 of 14 vide notification No. 09-PSC (DR-S) of 2017 dated 14.03.2017, notified the select lists and the candidates recommended for appointment as Assistant Engineers Civil in Public Works (R&B) and PHE/I&FC Departments.
7. Facts relevant with reference to the relief prayed for by the petitioners are also taken note of:
i Vide Service Selection Board Notification No. 02 of 2014 dated 30.12.2014, applications were invited for the posts of Junior Engineer (Civil). The total number of posts advertised were 235, break up of which was as follows:OM = 133
RBA = 47
SC = 23
ST = 20
ALC = 07
SLC = 05
The petitioners herein, being eligible, responded to the said Notification and claimed consideration for the posts of Junior Engineer (Civil).
ii. The selection process was conducted by Service Selection Board.
All the eligible candidates were put to written test followed by Viva Voce Test. That the selection list of candidates for the post of Junior Engineer (Civil) was forwarded by the Service Selection Board on 29.04.2016, vide communication No. SSB/Secy/Sel/2016/PWD/12133-39.
iii. All the petitioners herein appear from serial No. 3 to 25 (except serial No. 23) in the waiting list of " OM" category. It is submitted that the candidates, who appear at serial No. 1 and 2 of the waiting SWP no. 670/2017 Page 4 of 14 list have already been appointed as Junior Engineer. The writ petitioners herein continue to be in the waiting list. iv. That the State Government vide Government Order No. 173-PW (R&B) of 2016 dated 25.05.2016, issued order of appointment of the candidates as Junior Engineer.
v. That apart from "OM" category candidates petitioner No. 23 is a candidate under the "ST" category and appears at Serial No. 01 in the waiting list in the said category. Similarly petitioner No. 24 is a candidate under "RBA" category and appears at serial No. 01 in the waiting list category.
8. The case of the petitioners is that several candidates, who were appointed as Junior Engineers vide order dated 25.05.2016, as many as 23 Junior Engineers have been selected by the Public Service Commission for the post of Assistant Engineer. Similarly one candidate from "ST" category and one candidate from "RBA" category are also selected as Assistant Engineers. Hereinbelow petitioners record the particulars of the candidates, who were initially appointed as Junior Engineer vide order dated 25.05.2016 and who have subsequently been recommended for appointment as Assistant Engineer.
S. Name of the candidate Serial No. in Govt. order Serial No. in Select
dated 25.05.2016 list of Assistant
No. Engineers
1. Adnan Mushtaq (OM) 43 01
2. Khalid Nissar Pandit 15 04
(OM)
3. Javied Ahmad Mir 20 05
(OM)
4. Prafful Gupta (OM) 55 06
5. Mudasir Ahmad Mir 13 07
(OM)
SWP no. 670/2017 Page 5 of 14
6 Shahnawaz Hamid 19 08
(OM)
7. Vishal Sudan (OM) 03 10
8. Rukyia Ahmad (OM) 41 11
9. Yawer Hussain Mintoo 103 13
(OM)
10. Abhishek Jandiyal 04 15
(OM)
11. Aabid Rashid (OM) 05 18
12. Shafiya Lateef (OM) 32 20
13. Zahoor Ahmad 85 02
Chowdhary (ST)
14. Ajaz Ahmad Ganai 87 09
(OM)
15. Mushtaq Ahmad Khan 88 01
(RBA)
16. Shah Aalam (RBA) 24 02
17. Ashaq Hussain Ganai 25 08
(OM)
18. Ishtiyaq Ahamad 09 06
(RBA)
19. Tareen Gupta (OM) 16 16
20. Anil Sharma (ALC) 22 01
21 Idrees Bashir (RBA) 89 05
22. Rajat Choudhary (OM) 100 01
23. Irshad Ahmad Wani 120 20
(OM)
24. Mohammad Razak (ST) 14 02
25. Zahoor Ahmad Parray 22 04
(RBA)
9. During the pendency of the writ petition, petitioners have supplemented the pleadings in the miscellaneous petition being (MP No. 02/2017), stating therein that the total number of candidates appointed as Junior Engineers (Civil) in the department of R&B (PWD) were 133 and the select list remained valid for a period of one year. During this period of one year, 131 candidates joined as Junior Engineers. Further two candidates did not join. The respondents operated waiting list and SWP no. 670/2017 Page 6 of 14 recommended for appointment of candidates appearing at serial No. 1 and 2 in the "Open Merit" category.
10. Petitioners further submitted that during the validity of the select list as many as 24 Junior Engineers (Civil), who had also responded to a separate notification, issued by Public Service Commission for the post of Assistant Engineer (Civil) came to be appointed as Assistant Engineers vide Government order No. 146-PW(R&B) of 2017 dated 12.04.2017. It is submitted that these 24 Junior Engineers resigned during the period of one year, therefore, 24 posts became available during the validity of the select list. It is further submitted that the writ petitioners filed the writ petition before the expiry of the period of one year on the grounds that the petitioners being in the waiting list and having regard to the vacancies which have become available during the validity of the select list, are to be recommended for appointment as Junior Engineers, in accordance with the merit position as determined by the Service Selection Board. It is submitted that this Court passed interim order on 18.04.2017, the operative portion of which is taken note of, as under:-
" In the meantime, subject to objections, it is ordered that the vacancies which have accrued on account of resignation of some of the selected candidates as Junior Engineer (Civil) shall not be filled up and further that the wait list in which the petitioners figure shall not lapse till the matter is considered and decided."
(Emphasis supplied.)
11. The selection list of Junior Engineers was notified on 29.04.2016, and ordinarily would remain in operation upto 29.04.2017. The select list, followed by order of appointment of the Assistant Engineers was issued within the period of one year. It is submitted that the select list of the Assistant Engineers was notified vide Notification No. 10-PSC (DR-S) 2017 dated 27.03.2017 and the appointments were made on 12.04.2017.
12. The petitioners submit that they are entitled to be appointed as Junior Engineers against the vacancies, which have become available SWP no. 670/2017 Page 7 of 14 consequent to the resignation of 24 Junior Engineers, which vacancies have become available within the life of the select list, period of which has otherwise been extended by this Court vide order referred to above. It is submitted that the select list of Junior Engineers was notified on 29.04.2016 and ordinarily would remain in operation up to 29.04.2017. The select list of the Assistant Engineers was issued within a period of one year, notified vide notification No. 10-PSC (DR-S) 2017 dated 27.03.2017. It is submitted that petitioners are entitled to be appointed to the post of Junior Engineers (Civil) which have become available consequent to the appointment of Assistant Engineers within the life time of the select list, period of which has otherwise been extended by this Court vide order referred above.
13. Upon notice, respondents appeared and filed their reply resisting the claim of the petitioners inter alia on the grounds that; i) the vacancies upon which the petitioners are staking their claim, are future vacancies required to be re-advertised; ii) once the selection is issued the selection gets finalized and nothing remains to be done; iii) the writ petition has been filed on conjectures that 25 candidates have been selected as Assistant Engineers and on their resignation the vacancies will become available for the petitioners; iv) the petitioners have not placed anything on record to suggest that the candidates actually resigned and the vacancies have become available; v) the case of the petitioners is hit by Rule 14 (7) of J&K Civil Services Decentralization and Recruitment Rules 2010 (SRO 375); vi) the two vacancies had fallen vacant due to non- joining of the candidates and accordingly the wait list was operated by selecting the two candidates out of it; vii) some candidates resigned but the vacancies accrued on such count cannot be termed as existing vacancies but are future vacancies which are required to be advertised afresh. Etcetera.
SWP no. 670/2017 Page 8 of 1414. Heard learned counsel for the parties and considered the submissions made.
15. Whether the claim of the petitioners to appoint them on the vacancies of Junior Engineer (Civil), those became vacant on the appointment of the selected/appointed candidates as Assistant Engineers during the life time of the select/wait list, can be allowed is the sole question to be replied in these proceedings?
16. Learned senior counsel for the petitioners submits that the respondents are bound in law to appoint the petitioners on the vacancies those became vacant on the resignation of the appointed candidates. He submits that in selection matters the wait list remains in force for a period of one year and in the instant case the vacancies had arisen during the lifetime of the wait list, therefore, the petitioners are required to be appointed against the available posts. He further submits that the vacancies in the instant matter are referred to as "drop out vacancies" and the petitioners have a right to be adjusted against such vacancies. He submits further that there is absolutely no reason or justification available with the respondents to deny the right of absorption to the petitioners against the vacancies which have become available on the resignation of 25 candidates. In support of his submissions learned Senior Counsel referred to and relied upon the case law reported as 2011 (2) JKJ 779 titled Safina Javeed v. State & Ors;
17. Learned counsel for the petitioners, has also while strengthening his arguments with reference to the claim of the petitioners referred to and relied upon the Judgment reported in 2006 (3) JKJ 64 (HC). Para 58 being relevant is reproduced as under:-
" 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 SWP no. 670/2017 Page 9 of 14 waiting list in the order of merit against their respective categories."
18. The Division Bench in the aforesaid case has on the similar circumstances held that the vacancies, which have fallen vacant because of 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. The law laid down in the Judgment of the Division Bench squarely covers the case of the petitioners.
19. On the other hand Mr Q. R. Shamus, learned Deputy Advocate General, submits that petitioners have no case as the selection process initiated in the matter had come to an end with the issuance of selection list. He submits that the petitioners are seeking the benefit of appointment against the posts which do not exist as the writ petition has been filed on conjectures and eventualities. In support of his submissions learned State Counsel referred to and relied upon JKJ 2005 (2) 232; JKJ 2006 (3) 64; JKJ 2007 (3) 505; JKJ 2011 (2) 42.
20. Admittedly 25 posts of Junior Engineer (Civil) have become available during the life time of the validity of the select /wait list, on account of appointment of 25 candidates out of select list of Junior Engineers (Civil), therefore, claim raised by the petitioners has to be decided on the touch stone of the object behind the legislation, which has made the provision for keeping the select/wait list valid for a period of one year. The Rule making authority has made the rule on positive analysis, resulting in achieving positive object by ensuring that the requisitioned vacancies for selection are filled up at least during one year of the validity of selection list. To elucidate further, it shall be appropriate to underline the object by interpreting the rule of validity of select/wait list to the extent SWP no. 670/2017 Page 10 of 14 of ensuring appointment against the "drop out vacancies" out of the select list during one year of the validity of the list.
21. In the above backdrop, there is no point to join issue with reference to non-utilizing the vacancies, which have admittedly became available during the life time of the validity of the select/wait list. This Court consciously while underlining the object of the rule with reference to the period of validity of select/wait list has directed respondents not to fill up these vacancies and extended period of validity of the wait list till the final consideration of the matter for decision.
22. Submissions made by Mr. Z. A. Shah, Sr. Advocate appearing counsel for the petitioners with reference to the pleadings and the law has substance. Claim of the petitioners cannot be rejected merely because the vacancies have become available on account of resignation of some of the Junior Engineer candidates on their appointment as Assistant Engineers by treating those vacancies as future vacancies.
23. How does it matter if the vacancies have become available immediately on joining of the candidates as Junior Engineers, who had also competed in the process of selection of Assistant Engineers, simultaneously with the selection of Junior Engineers to be utilized for those candidates, who are also figuring in the merit list beyond the available vacancies? Petitioners are strengthening their claim with reference to the merit, they have obtained in the process of selection, undertaken by the Service Selection Board, and they are not claiming their appointments without following the procedure of selection.
24. The object and purpose to prepare the selection list along with wait list is to ensure that all the requisitioned vacancies are utilized by making available the selected candidates to extract work from them in the public interest. The Government should have on their own accepted the plea of the petitioners, who are qualified and selected Junior Engineers, though in SWP no. 670/2017 Page 11 of 14 wait list by making their appointments against the "drop out vacancies"
without compelling them to approach this Court. Court says so because if the approach adopted by the Government by denying the petitioners right of consideration for appointment is accepted, it may delay utilizing the posts of Junior Engineers (Civil) for further years and in turn the public will suffer. What is bad about utilizing the vacancies by appointing the petitioners for the public good with reference to avoiding delay in making selection and appointment, normally it takes years together for making selection and appointment against the public post. In the instant case also the process initiated in the year 2014 for filling up the posts of Junior Engineer (Civil) against the 133 posts of Junior Engineers (Civil) has taken two long years for the Service Selection Board and Government to make appointments against these posts and from the date of selection two more years are about to be completed, in practical 25 posts remained vacant for the last about four years, therefore, the decision of the Government with reference to denying the benefit to the petitioners, as claimed is tested in the judicial scrutiny being not reasonable. The decision of the Government should always be fair, reasonable, honest and in the interest of public.
25. Reference of the Judgment above made by Mr. Z. A. Shah, Sr. Advocate, while supporting his case is also relevant and squarely covers the case of the petitioners. Paragraph 12 of the same is taken note of:-
" 12. 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 only selection process is brought to its logical conclusion, for which life of the panel 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 SWP no. 670/2017 Page 12 of 14 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 could be defeated. The select list has to remain in force for a period of one year and object cannot be destroyed 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."
The Judgment is based on the Judgment of the Hon'ble Apex Court reported in AIR 2001 SC 2900 titled State of Punjab Vs. Raghbir Chand Sharma and Anr.
26. The submissions made by Mr. Q. R. Shamus, learned Deputy Advocate General that the petitioners have no case, as the selection process initiated in the matter had come to an end with the issuance of selection list, and the petitioners cannot seek benefit of appointment against the posts, which do not exist with the support of the law has no substance, it is because the respondents are treating these vacancies as future vacancies and not as "drop out vacancies".
27. On the analysis made by this Court with the strength of the interpretation of the Rule 14 (7) of J&K Civil Services Decentralization and Recruitment Rules 2010, it has become clear that the object of the rule is to ensure that the requisitioned vacancies are filled up during the validity period of the select/wait list. Rulemaking authority has only with this intention to ensure utilization of vacancies during the validity of select/wait list made it valid for one year, otherwise, it looses its object and significance. Ordinarily the joining period of appointment of a selected candidate is only provided as 21 days and if the submission of Mr. Q. R. Shamus, learned Dy. AG accepted, then why does the Rule making authority make the select/wait list valid for a period of one year, SWP no. 670/2017 Page 13 of 14 why should it not be kept valid for only till the expiry of the joining time of the appointed candidates. On the analysis and interpretation, so made this Court is of the considered view that the vacancies which accrued during the validity period of the selection list are to be utilized amongst the wait list candidates, who are made available by the Service Selection Board.
28. In view of above, the writ petition succeeds and is allowed, directing the respondents to operate the waiting list of Junior Engineers (Civil) against those vacant posts, which have become available within the period of one year from the date when the recommendation for appointment was made by the Service Selection Board to the State Government, against respective categories, where the vacancies have arisen because of appointment of selected/ appointed Junior Engineers (Civil) as Assistant Engineers (Civil), within a period of four weeks.
Disposed of along with connected MP(s).
(Ali Mohammad Magrey) Judge Srinagar 03.05.2018 Mohammad Yasin Dar SWP no. 670/2017 Page 14 of 14