Central Administrative Tribunal - Jammu
Sunny Dubey vs Directorate Of School Education Ut Of ... on 17 December, 2025
:: 1 :: T.A. No. 2326/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
JAMMU BENCH, JAMMU (RESERVED)
Hearing through video conferencing
Transfer Application No. 2326/2020
Reserved on: - 10.06.2025
Pronounced on: - 17.12.2025
HON'BLE MR. RAJINDER SINGH DOGRA, MEMBER (J)
HON'BLE MR. RAM MOHAN JOHRI, MEMBER (A)
Sunny Dubey, age 28 years, S/o Ramesh Chander, R/o Nalla Ghoran,
Ram Nagar, Udhampur.
...Petitioner
(By Advocate: - Mr. Sahil Sharma)
VERSUS
1. Chairman, Service Selection Board, J & K, Jammu.
2. State of J & K through Commissioner/Secretary, J & K Govt.
Education Department, Civil Secretariat Jammu/Srinagar.
3. Director School Education, Jammu & Kashmir at Jammu.
4. Chief Education Officer, District Udhampur.
...Respondents
(By Advocate: - Mr. Sudesh Magotra, AAG)
HARSHIT Digitally signed by
YADAV HARSHIT YADAV
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ORDER
Per: - Rajinder Singh Dogra, Judicial Member
1. The SWP/WP(C) No. 4034/2019 was transferred from the Hon'ble High Court of Jammu and Kashmir at Jammu and was registered as T.A. No. 61/2326/2020 by the Registry of this Tribunal.
2. The present matter was filed before the Hon'ble High Court with following prayer:
a) "allow the present writ petition;
b) Command and direct the respondents to consider the selection
and engagement of the petitioner against one of the posts of Junior Assistant Distt. Udhampur under RBA Category, pursuant to Advertisement Notice No. 02 of 2017 retrospectively from the date other candidates was selected against the advertisement notice referred above.
c) Restrain the respondents, more particularly respondent No. 2 from initiating fresh Selection process for filling up the post of Jr. Asstt. In School Education Department under RBA category of District Cadre Udhampur.
d) ANY other writ, order or direction which this Hon'ble Court may deem fit or proper in the facts and circumstances of the case."
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3. The facts of the case as averred by the petitioner in his pleadings are as follows:
a) The petitioner, Sunny Dubey S/o Romesh Chander, resident of Ramnagar, District Udhampur, is a permanent resident of J&K. He is a qualified person holding a Post Graduate Diploma in Journalism & Mass Communication and a Diploma in Computer Software. He is unemployed, and no one from his family is in government service.
b) The J&K Services Selection Board (JKSSB) issued Advertisement Notice No. 02 of 2017 inviting applications for the post of Junior Assistant in Education Department, District Udhampur, under the RBA Category. The petitioner applied under the RBA category, being an eligible candidate.
c) The petitioner appeared for the type test and qualified. He was thereafter called for the written test, which he also qualified.
His name appeared at Sr. No. 5 in the shortlist/counseling list for Junior Assistant under the RBA category. Despite being qualified, during counseling the petitioner's name was not included in the waiting list, to his utter surprise. As per CEO HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 4 :: T.A. No. 2326/2020 Udhampur's communication dated 08.04.2019, at least three selected candidates under RBA category did not join as Junior Assistants:
Sapna Devi (joined as Lab Assistant instead; submitted affidavit confirming non-joining).
Ganesh Singh (joined in Health & Medical Department instead; did not join as Junior Assistant).
Rajesh Kumar (had already joined as Junior Assistant earlier in Education Department; his selection was wrongly considered again for the same post).
d) This resulted in vacancies remaining unfilled against the advertised posts of Junior Assistant under RBA category. The petitioner made several representations to the respondents for considering his case against the vacant posts, but no action was taken.
e) On 27.08.2019, the CEO Udhampur issued an order directing operation of the waiting list for filling up the posts under RBA category, but the petitioner's case was still not considered. On 02.09.2019, a legal notice was also sent on behalf of the HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 5 :: T.A. No. 2326/2020 petitioner, but it remained unanswered. The petitioner contends that due to oversight and arbitrariness by the JKSSB and Education Department, his rightful claim for appointment was ignored. He argues that Rajesh Kumar was wrongly counted twice in the same department on the same post, which deprived him of selection. Despite clear vacancies due to non-joining, the respondents failed to operate the waiting list in a fair manner.
f) The petitioner seeks Issuance of a writ of mandamus commanding respondents to consider his selection and appointment as Junior Assistant in Education Department, Udhampur (RBA Category) against Advertisement Notice No. 02 of 2017. Restraining the respondents from initiating any fresh selection process for the said post until his case is decided.
4. The respondents have filed their reply statement wherein they have averred as follows:
a) The answering respondent respectfully submits that the present petition is misconceived and not maintainable as no cause of action has accrued to the petitioner against the Jammu and HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 6 :: T.A. No. 2326/2020 Kashmir Services Selection Board. The petitioner has not been subjected to any violation of rights by the Board, and as such, there is no ground to invoke the extraordinary jurisdiction of this Hon'ble Tribunal.
b) It is submitted that the Services Selection Board advertised various posts including the post of Junior Assistant in School Education Department, District Cadre Udhampur, vide Advertisement Notification No. 02 of 2017 dated 18.10.2017.
Under Item No. 54, a total of 34 posts were advertised with category-wise breakup of OM-19, RBA-07, SC-03, ST-03, ALC-01, and OSC-01. The prescribed qualification for the said post was graduation from a recognized University with a typing speed of not less than 35 words per minute and a six months certificate course in Computers from a recognized institute.
c) Pursuant to the advertisement, the Board conducted the Computer Based Test (CBT) in April 2018. On the basis of performance in the written examination, a provisional selection list was published on 05.06.2018, and after completion of the entire selection process, the final selection list was issued on 16.11.2018 and forwarded to the School Education Department.
HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 7 :: T.A. No. 2326/2020 The process was carried out strictly in accordance with the rules and regulations as well as the indent received from the concerned department.
d) As per the selection list, the last cut-off merit under RBA category was 46.9500 and for RBA waiting list was 44.3500. The petitioner, who applied under RBA category, did not meet the required cut off. Since he did not fall within the zone of consideration, his candidature was not included in the selection or the waiting list. The petitioner's grievance is therefore without any basis.
e) It is further submitted that the selection process was completed in a transparent manner and in full compliance with law. The answering respondent being a statutory authority is bound to conduct the process strictly as per the rules and no deviation was permitted. No illegality, arbitrariness, or favoritism has been committed by the Board. The petitioner has instead approached this Hon'ble Tribunal with distorted and concealed facts, trying to mislead the court by suppressing the true position regarding his merit.
HARSHIT Digitally signed by
YADAV HARSHIT YADAV
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f) In view of the above facts and circumstances, it is most
respectfully prayed that the present petition may be dismissed as devoid of merit and the validity of the selection process conducted by the Services Selection Board pursuant to Advertisement Notification No. 02 of 2017 may be upheld in the interest of justice.
5. Heard learned counsel for the parties and perused the material on record.
6. The following issues arise for determination:
(i) Whether the respondents were under a duty to fill the vacancies caused by non-joining of selected candidates from among eligible candidates of the same selection process?
(ii) Whether denial of consideration to the applicant amounts to arbitrariness violating Articles 14 and 16 of the Constitution?
(iii) Whether the objections raised by respondents regarding cut-off marks and transparency are sustainable?
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(iv) Whether fresh recruitment can be undertaken ignoring unfilled vacancies from Advertisement Notice No. 02 of 2017?
7. The respondents' objection that the petition is misconceived and not maintainable is unsustainable. The grievance clearly arises from the respondents' omission to fill advertised vacancies that remained unoccupied due to non-joining of selected candidates. Such inaction results in denial of equal opportunity in public employment and gives rise to a valid cause of action.
8. The respondents' argument that the applicant was below the cut-off (46.95 for selection, 44.35 for waiting list) cannot stand in the peculiar facts of this case. Admittedly, three vacancies under RBA category remained unfilled. The settled legal position is that vacancies arising due to non-joining must be filled from next meritorious candidates of the same selection process.
9. Respondents have stated that the last cut-off for RBA was 46.95 (selection) and 44.35 (waiting list) and that the applicant fell below cut-off. The very purpose of operating a waiting list is to ensure that vacancies are filled if selected candidates do not join. Once notified HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 10 :: T.A. No. 2326/2020 vacancies remain unfilled, the respondents are bound to consider next meritorious candidates, even if they were not originally within the notified waiting list.
10. The applicant does not dispute the issuance of Advertisement Notification No. 02/2017 or the conduct of CBT/written test. However, the respondents have failed to appreciate that three selected candidates under RBA category (Sapna Devi, Ganesh Singh, Rajesh Kumar) did not join, which resulted in clear vacancies. Once vacancies arise due to non-joining, respondents were legally bound to fill them from eligible candidates of the same selection process.
11. In Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637 and Prem Singh v. Haryana SEB, (1996) 4 SCC 319, the Hon'ble Supreme Court has held that non-joining vacancies cannot be left unfilled and must be offered to eligible candidates from the waiting list or next in merit. Likewise, in Asha v. Pt. B.D. Sharma University, (2012) 7 SCC 389, it was held that no advertised seat/post should be allowed to go waste if eligible candidates are available.
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12. Hence, the plea of cut-off cannot be used to defeat the applicant's claim, as it would result in wastage of advertised vacancies and denial of fair opportunity
13. The respondents' claim of complete transparency is contradicted by their own record. It is undisputed that Rajesh Kumar was wrongly considered despite already being appointed as Junior Assistant in the Education Department. This duplication not only deprived another candidate's opportunity but also exposes arbitrariness in the operation of the selection list.
14. Rajesh Kumar was wrongly considered a second time for the same post despite already working as Junior Assistant in Education Department. This illegal duplication blocked another deserving candidate's chance. The Hon'ble Supreme Court in K. Manjusree v. State of A.P., (2008) 3 SCC 512 held that any deviation from prescribed selection norms vitiates the process. The respondents' lapse in this regard renders their plea of transparency unacceptable.
15. The respondents have relied upon the principle that inclusion in a selection list does not confer an indefeasible right to appointment. While this proposition is correct as laid down in Shankarsan Dash v.
HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 12 :: T.A. No. 2326/2020 Union of India, (1991) 3 SCC 47, the same judgment clarified that the authorities cannot act arbitrarily in refusing to fill vacancies.
16. In the present case, leaving advertised vacancies unfilled despite the availability of the applicant is nothing but arbitrariness, which cannot be sustained in law.
17. The applicant, having duly qualified the type test and written test, legitimately expected that his case would be considered against unfilled vacancies. The respondents' failure violated the doctrine of legitimate expectation and fair play in action (Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499).
18. We have taken the reliance of judgment passed by this tribunal in OA 496/2022 when we have allowed the OA by directing the respondents to appoint the applicant even if waiting list is expired. This Bench of Tribunal has held as:
"8. In light of these principles, it is clear that the Judicial Member's opinion is consistent with the LPA 207/2012 judgment, which supports the applicant's claim for reconsideration for appointment, even if the waiting list has expired. The Administrative Member's reliance on the expiration of the waiting list, without HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 13 :: T.A. No. 2326/2020 considering the broader context of special recruitment rules or available vacancies, is not supported by this legal precedent.
9. After reviewing all the facts and legal principles, the Tribunal concludes that the applicant's claim for reconsideration of appointment is justified and should be upheld in the interests of fairness and equity.
10. Accordingly, the judgment is rendered in concurrence with the opinion expressed by the Hon'ble Judicial Member. It is hereby directed that the applicant's candidature shall be duly reconsidered for appointment against the vacancies that have arisen, in accordance with the directions contained hereinabove. Consequently, the impugned communications dated 04.04.2022 and 01.05.2022, issued by respondent Nos. 4 and 5, are hereby quashed and set aside. The respondents are further directed to consider the applicant for appointment to one of the available posts of Accounts Assistant in the Division Cadre Kashmir, pursuant to the selection process initiated vide Advertisement Notice No. 01 of 2012 dated
19.07.2012. Upon such appointment, the applicant shall be assigned seniority immediately below the last candidate appointed through the same selection process.
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11. The entire exercise shall be undertaken within a period of two months from the date of receipt of certified copy of this order.
12. With this, the O.A. is allowed. However, there shall be no orders as to costs."
19. In State of J&K Vs Vijay Sharma (2005), the Hon'ble Supreme Court has held that:-
"Under the above circumstances, it is just and proper to direct that out of the notified vacancies, if any of the posts are remaining unfilled either due to want of candidates or non-joining duties. These vacancies shall be filled up by candidates out of the petitioners who have secured more than the cut-off marks secured in the 1997 selection and they be appointed according to the marks se cured in the selection. This exercise shall be completed within a pe nod of four months and their appointments shall be effected by the petitioner State within thus period It is also clarified that in case any of the candidates have become over age by this time, that criteria shall not stand m the way of appointment"
20. The grievance of the applicant arises from denial of appointment despite availability of vacancies under Advertisement No. 02/2017 and the cause of action is squarely against the respondents who failed HARSHIT Digitally signed by YADAV HARSHIT YADAV :: 15 :: T.A. No. 2326/2020 to operate the waiting list properly, thereby infringing applicant's fundamental rights under Articles 14 & 16.
21. In view of the foregoing discussion, this Tribunal holds that the applicant's exclusion was arbitrary, unjust, and violative of Articles 14 and 16 of the Constitution.
22. Accordingly, this Transferred Application is allowed with the following directions:
a) The respondents are directed to consider and appoint the applicant, as Junior Assistant under the RBA category, District Cadre Udhampur, against one of the posts advertised vide Advertisement Notice No. 02 of 2017, which remained unfilled due to non-joining.
b) Such appointment shall be given retrospective effect from the date similarly situated candidates joined service, for the purposes of seniority and notional benefits.
c) However, the applicant shall be entitled to monetary benefits only prospectively from the date of his actual joining in terms of this order.
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d) The respondents are further restrained from initiating any fresh recruitment process for Junior Assistant under RBA category of District Udhampur until the applicant's appointment is given effect.
e) No order as to costs. (RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) Administrative Member Judicial Member /harshit/ HARSHIT Digitally signed by YADAV HARSHIT YADAV