Jammu & Kashmir High Court - Srinagar Bench
State Of J&K And Others vs Sheikh Mushtaq Ahmad & Ors on 31 December, 2020
Bench: Sanjeev Kumar, Rajnesh Oswal
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Reserved on:10.11.2020
Pronounced on:31.12.2020
LPASW No.117/2017
State of J&K and others ...Appellant(s)
Through: - Mr. D. C. Raina, Advocate General with Mr.
Sajad Ashraf, GA.
Vs.
Sheikh Mushtaq Ahmad & Ors. ...Respondent(s)
Through: - Mr. Ateeb Kanth, Advocate-for R1.
Mr. Mir Suhail, AAG-for R2 & R3.
CORAM:
HON‟BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.
HON‟BLE MR. JUSTICE RAJNESH OSWAL, JUDGE.
JUDGMENT
Sanjeev Kumar „J‟
1) This appeal by the erstwhile State of Jammu and Kashmir (now Union Territory of Jammu & Kashmir), in terms of Clause 12 of the Letters Patent, is directed against the judgment dated 23rd November, 2016, passed in SWP No.607/2016 titled „Sheikh Mushtaq Ahmad vs. State of J&K & others‟ whereby the Writ Court has allowed the writ petition and quashed the impugned communication bearing No.SSB/Secy/ Sel/2016/4663-64 dated 10th of March, 2016, with a direction to the appellants to appoint the respondent No.1 herein (hereinafter the writ petitioner) against the post of Junior Assistant within a period of one month.
2) The appellant is aggrieved and has assailed the impugned MOHAMMAD ALTAF BHAT 2020.12.31 13:08 judgment, primarily, on the ground that the selection does not confer any I attest to the accuracy and integrity of this document 2 LPASW No.117/2017 right on the selected candidate to be necessarily appointed as a matter of course and that the selection/appointing authority is well within its right to deny appointment to the selected candidate for good and valid reasons. In short, the contention of the learned counsel representing the appellant is that by virtue of his selection the respondent No.1 herein did not acquire any vested right to be appointed and, therefore, no grievance can be raised with regard to the decision of the appellant not to give appointment to the writ petitioner for the reason that his selection by the Service Selection Board was against a non-existent post. It is also argued that availability of the post is sine qua non for making appointment and in the instant case, the selection of writ petitioner by the Service Selection Board under „OSC‟ category was non-est in the eyes of law for the reason that neither there was any post under „OSC‟ category available with the appellant nor the same was ever referred to the Service Selection Board for making selection.
3) Per contra, Mr. Ateeb Kanth, learned counsel representing respondent No.1, vehemently submits that the judgment of the learned Single Judge is completely in consonance with law and the plea of the appellant that the J&K Service Selection Board had erroneously made selection of the writ petitioner under „OSC‟ category is without any substance. He urges that had it been a case of any error or mistake having been committed by the Service Selection Board, both Service Selection Board as well as the appellant had ample opportunity to correct the error. It is the contention of learned counsel for the writ petitioner MOHAMMAD ALTAF BHAT that the respondent Service Selection Board not only notified the 2020.12.31 13:08 I attest to the accuracy and integrity of this document 3 LPASW No.117/2017 vacancy under „OSC‟ category but considered the writ petitioner along with other eligible candidates for the same in the selection process. On completion of the selection process, the candidature of the writ petitioner was recommended by the respondent Board and the appellant not only accepted the recommendation but also approved his appointment.
4) Mr. Ateeb Kanth, learned counsel for the writ petitioner, also invokes the doctrine of „promissory estoppel‟ and argues that the appellant cannot be permitted to turn around after the writ petitioner has undergone the whole selection process and by dint of his merit made it to the select list.
5) With a view to appreciating the rival contentions, it is necessary to set out few facts as are relevant to the disposal of this appeal.
6) 46 vacancies of Junior Assistants, available in the Department of Commercial Taxes, came to be referred by the appellant to the J&K Service Selection Board in terms of communication No.ET/Estt/296/ 2006 dated 04.10.2007. The break-up of the vacancies, as indicated in the letter of requisition, was in the following manner:
Total number of posts =46 posts
Jammu Division =24
Kashmir Division =22
So far as Kashmir Division is concerned, the category-wise break- up of the vacancies was as under:
OM =12
SC =02
ST =02
RBA =05
ALC =01
MOHAMMAD ALTAF BHAT
2020.12.31 13:08
Total =22
I attest to the accuracy and
integrity of this document
4 LPASW No.117/2017
It appears that apart from the Department of Finance, the Service Selection Board had also received similar requisitions from various other departments.
7) On receipt of requisition from the appellant, the Service Selection Board vide Advertisement Notice No.02 of 2011 dated 28 th of February, 2011, invited applications, inter alia, for 93 posts of Junior Assistant available in Divisional Cadre, Kashmir, in the Departments of Tourism, Finance, Health, PWD, Planning and Development, Higher Education, Animal Husbandry and Cooperative. The break-up of the posts as indicated in the advertisement notice against item No.339 (Junior Assistant Kashmir Division) was in the following manner:
OM =36
RBA =26
SC =14
ST =11
ALC =05
OSC =01
Total =93
8) The writ petitioner being eligible responded to the advertisement
notification and sought consideration under „OSC‟ category. After undergoing the selection process, the writ petitioner came to be selected and recommended for appointment as Junior Assistant in the Finance Department under „OSC‟ category. The writ petitioner was not appointed by the Department of Finance on the ground that neither there was any post of Junior Assistant under „OSC‟ category available nor the same had been sent to the Service Selection Board for making selection. It appears that when this fact was communicated by the Department of MOHAMMAD ALTAF BHAT Finance to the Service Selection Board, the Service Selection Board vide 2020.12.31 13:08 I attest to the accuracy and integrity of this document 5 LPASW No.117/2017 its communication dated 10th of March, 2016, addressed to the Commissioner/Secretary to Government, Finance Department, requested the Finance Department to put on hold the selection of the writ petitioner till further clearance.
9) Feeling aggrieved, the writ petitioner filed SWP No.607/2016, claiming, inter alia, a direction to the appellant to allow him to join against the post of Junior Assistant in the Department of Finance in terms of the recommendation made in his favour by the Service Selection Board. The writ petitioner also sought a Certiorari to quash the communication dated 10th of 2016, by virtue of which the recommendation of the writ petitioner made by the Service Selection Board had been kept withheld.
10) The respondent Service Selection Board alone contested the writ petition. The claim of the writ petitioner for his appointment as Junior Assistant in the Department of Finance under „OSC‟ category was resisted on the ground that in the requisition submitted by the Finance Department, no post had been allocated to „OSC‟ category and, therefore, selection and recommendation of the writ petitioner was inadvertently made. However, there was no explanation given by the Service Selection Board with regard to the selection, if any made, against the post of Junior Assistant under „OSC‟ category notified against item No.339 of Advertisement Notice No.02 of 2011 dated 28 th of February, 2011.
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11) The matter was considered by the Writ Court who vide judgment impugned accepted the plea of the writ petitioner and directed the appellant to act upon the selection and appoint the writ petitioner against the post of Junior Assistant as per the merit secured by him in the selection process. The impugned communication dated 10 th of March, 2011 was also quashed by the Writ Court.
12) The appellant is dissatisfied and aggrieved of the impugned judgment and has assailed the same in this appeal, primarily, on the ground that once the appellant department had not referred any post of Junior Assistant under „OSC‟ category to the Service Selection Board, the selection of the writ petitioner made by the Service Selection Board inadvertently against a non-existent vacancy did not confer any right on the writ petitioner to be appointed.
13) Having heard learned counsel for the parties and also perused the record, we are of the considered view that it is too late in the day to show the writ petitioner door. It may be true and is otherwise borne out from the record, that there was no requisition made by the appellant department with respect to the post of Junior Assistant under „OSC‟ category. The appellants have placed on record copy of the requisition which bears testimony of the aforesaid fact but this Court cannot lose sight of the fact that amongst 93 vacancies of Junior Assistant notified by the Service Selection Board, one vacancy was clearly earmarked for „OSC‟ category. It further comes out from the Advertisement Notice No.02 of 2011 that the Service Selection Board had received various requisitions MOHAMMAD ALTAF BHAT 2020.12.31 13:08 I attest to the accuracy and integrity of this document 7 LPASW No.117/2017 from different departments and had clubbed the vacancies for the purpose of making selection through a common selection process.
14) Despite insistence of this Court to the Board to clarify the position and produce the requisite record, the Service Selection Board failed to tender any plausible explanation. The record produced by Mr. Mir Suhail, learned counsel for Service Selection Board, was incomplete and instead of clearing the mist, confounded the confusion. From scanning through the record produced by Mr. Mir Suhail minutely, we could not arrive at any conclusion.
15) On the record, we found one requisition from the Department of Law also in which one vacancy was shown to have been allocated to the backward class. The respondent Board submits that the backward class would mean the category of RBA whereas it is pleaded by learned counsel for the writ petitioner that backward class will have reference to the category of „OSC‟. Without entering into this debate, we are of the view that amongst 93 vacancies of Junior Assistant belonging to different departments, necessarily there was one vacancy earmarked for „OSC‟ category. The respondent Board has not corrected this position indicated in the Advertisement Notice by issuing any corrigendum.
16) It may be true that the vacancy of „OSC‟ notified by the Board does not belong to the Department of Finance and it could possibly be a vacancy available in some other department, which may be the Department of Law and Justice. In such situation, when the writ petitioner had not responded to the post of Junior Assistant in the MOHAMMAD ALTAF BHAT 2020.12.31 13:08 I attest to the accuracy and integrity of this document 8 LPASW No.117/2017 Department of Finance only but had submitted his application for consideration against all the 93 vacancies available in different departments indicated in the Advertisement Notice against item No.339, it would be highly unjust and inequitable to exclude the writ petitioner from zone of selection on the ground that his recommendation made to the Finance Department is not capable of being carried out because of non-availability of vacancy under „OSC‟ category in the Department of Finance.
17) There is no dispute with regard to the proposition that placing of a candidate in the select list does not confer upon him a right to be appointed and the appointment can be denied to such selected candidates for good reasons. Non availability of vacancy can be a good reason to deny appointment to the writ petitioner in the instant case but the facts of this case are entirely different. The writ petitioner had not applied for selection to the post of Junior Assistant in the Department of Finance only. He had applied for all the 93 vacancies which were available in different departments and had been clubbed together by the respondent Board for making selection. The writ petitioner was not even aware about the number of vacancies and their break-up contained in the requisitions received by the Service Selection Board from different departments. Absent the clarification from the Service Selection Board with regard to the notification of one out of 93 vacancies of Junior Assistant under „OSC‟ category, this Court has no option but to believe that the selection of writ petitioner has been made against the available MOHAMMAD ALTAF BHAT vacancy of Junior Assistant under „OSC‟ category. However, this Court 2020.12.31 13:08 I attest to the accuracy and integrity of this document 9 LPASW No.117/2017 on perusal of the incomplete record made available has not been able to come to any definite conclusion. Making of recommendation of the writ petitioner for his appointment against the post of Junior Assistant under „OSC‟ category in the Finance Department was the decision of the Service Selection Board not attributable to the writ petitioner. In these circumstances, denying appointment to the writ petitioner would be highly arbitrary and violative of Article 14 of the Constitution of India. In such situation, this Court is well within its right to step in and undo the injustice.
18) In the given peculiar facts and circumstances obtaining in the case, we are inclined to dispose of this appeal by providing that the whole matter with regard to selection and appointment of the writ petitioner as Junior Assistant under „OSC‟ category shall be placed before the Chief Secretary of the Union Territory of J&K, who shall issue appropriate orders for appointment of the writ petitioner as Junior Assistant under „OSC‟ category available in any of the departments of Union Territory Viz. Tourism, Finance, Health, PWD, Planning and Development, Higher Education, Animal Husbandry and Cooperative. Ordered accordingly.
19) It is made clear that in case no post of Junior Assistant under „OSC‟ category is available to accommodate the writ petitioner, the Chief Secretary shall utilize any other available post of Junior Assistant in any of the aforesaid departments or some other department so as to meet out justice to the writ petitioner. The appointment of the writ MOHAMMAD ALTAF BHAT 2020.12.31 13:08 petitioner shall date back to the date when the candidates selected I attest to the accuracy and integrity of this document 10 LPASW No.117/2017 pursuant to Advertisement Notice No.02 of 2011 were selected and appointed by the Government/department(s) concerned. The writ petitioner shall be entitled to all consequential benefits minus the monetary benefits.
20) The aforesaid exercise be undertaken and completed within a period of two months from the date a certified copy of this judgment is served upon the Chief Secretary.
(Rajnesh Oswal) (Sanjeev Kumar)
Judge Judge
Srinagar
31.12.2020
"Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
MOHAMMAD ALTAF BHAT
2020.12.31 13:08
I attest to the accuracy and
integrity of this document