of J&K & Ors Vs. Sanjeev Kumar
& Ors  Insc 140 (24 February 2005)
Pasayat & S.H. Kapadia
out of S.L.P. (C) Nos. 21637-21638 of 2003) (With C.A. Nos.1411-1412/2005 @ SLP (Civil) Nos.21954-955/2003)
ARIJIT PASAYAT, J.
appeals are directed against the judgment rendered by a Division Bench of the
Jammu and Kashmir High Court holding that the appointment of three doctors,
namely, Dr. Muzaffar Jan, Dr. Ghulam Rasool Wani and Dr. Ghanshyam Saini-the
appellants in the civil appeals corresponding to SLP (C) Nos.21954-21955 of
2003 to be illegal. They are also private respondents in the appeals filed by
the State of Jammu and
Kashmir, and Jammu and Kashmir Public Service
Commission (in short the 'PSC').
facts in a nutshell are as follows:
advertisement was issued on 12.10.1998 by the State inviting applications for
appointment as lectures in Paediatrics in the Medical Education Department of
the State of Jammu and
Kashmir. Before that
date four persons had been granted ad-hoc promotion as Assistant Professors.
Such promotion was subject to approval by the PSC. On 23.10.1998 PSC accorded
approval to the promotion of the four lecturers as Assistant Professors.
response to the advertisement, several persons had applied.
Kumar and Dr. Arun Gandotra (the writ petitioners before the High Court) had
also applied. Since they were not found eligible for appointment they were not
called for interview. Questioning such action writ petitions were filed by
them. Pursuant to interim orders by the High Court they were allowed to
participate in the selection process; but were not found eligible. The writ
petitions filed by them were dismissed. There was no further challenge.
Subsequently, a select list was prepared by the PSC indicating that one Dr. Nazir
Ahmad Parray was placed at no.1 while the result in respect of second post was
being held. A waiting list was prepared where names of Dr. Muzaffar Jan, Dr. Ghulam
Rasool Wani and Dr. Ghanshyam Saini were listed. The select list was prepared
on 25.10.1999. According to the operative Rules i.e. Jammu and Kashmir Medical
Education Gazetted Service Recruitment Rules, 1979 (in short the 'Rules')
period of validity of the list is one year which may be extended by another six
months on special request of the Government if the request for such extension
is made before the expiry of the validity of the panel. The relevant Rule is
Rule 57. Before the expiry of the one year, period Dr. Muzaffar Jan, Dr. Ghulam
Rasool Wani and Dr. Ghanshyam Saini were appointed. Questioning their
appointments, Dr. Sanjeev Kumar and Dr. Arun Gandotra filed writ petitions
before the Jammu and
Kashmir High Court. A
learned Single Judge dismissed the application holding that the appointments
were made in accordance with the Rules, and there was nothing infirm and in any
event the writ petitioners who were found ineligible initially and their
challenge to the selection was held to be without substance cannot raise any
dispute. Letters Patent Appeals were filed before the High Court. By the
impugned judgment the Division Bench of the High Court allowed the appeal
holding that the appointments were beyond the notified vacancies as per
advertisement and this was not really a case of existing vacancies which were
not notified. On the contrary, it was in respect of future vacancies. It was
held that though learned Single Judge had referred to certain Rule as regards
preparation of select list, the specific Rule was not noted. The writ petitioners
had locus standi to question the selection as they could have come within the
zone of consideration had these posts been notified. Though reference was made
to certain policy decisions to justify the appointments the relevant files were
not produced in spite of specific directions.
support of the appeals, learned counsel for the appellants submitted that the
High Court rejected the State's stand that the policy decision was taken to
appoint the selected persons, in view of the piquant situations, the relevant
files could not be produced. The files would clearly indicate that to meet the
requirements as stated by the Medical Council of India (in short the 'MCI')
appointment from the waiting list was imperative. The approach of the High
Court was erroneous both factually and legally. It failed to notice that
because of the officiating promotions given to four persons, there were four
vacancies existing. Merely because they were not notified, that did not make
the situation different. It was not really a case of future vacancies but
anticipated and existing vacancies. Since it is permissible, no faults should
have been found by the High Court. The writ petitioners did not possess the
requisite qualifications and, therefore, they did not have locus standi to challenge
response, learned counsel for the writ petitioners (respondents in the present
appeals) submitted that the State had not made any requisition for six posts.
It had categorically advertised for two posts. If in reality the PSC had
considered the four vacancies to be existing vacancies, it would have made list
of six candidates and would not have drawn up waiting list. Though the writ
petitioners were found to be ineligible on the date of advertisement, they were
eligible on the date the select list was drawn up. The advertisement indicated
the eligibility criteria to be as on 26.10.1998.
legal position so far as the case of existing vacancies, notified vacancies and
future vacancies has been set out by this Court in several decisions. In Prem
Singh and Ors. v. Haryana State Electricity Board and Ors. (1996 (4) SCC 319), in
paragraphs 25 and 26 it was laid down as follows:
From the above discussion of the case-law it becomes clear that the selection
process by way of requisition and advertisement can be started for clear
vacancies and also for anticipated vacancies but not for future vacancies. If
the requisition and advertisement are for a certain number of posts only the
State cannot make more appointments than the number of posts advertised, even
though it might have prepared a select list of more candidates. The State can
deviate from the advertisement and make appointments on posts falling vacant
thereafter in exceptional circumstances only or in an emergent situation and
that too by taking a policy decision in that behalf. Even when filling up of
more posts than advertised is challenged the court may not, while exercising
its extraordinary jurisdiction, invalidate the excess appointments and may
mould the relief in such a manner as to strike a just balance between the
interest of the State and the interest of persons seeking public employment.
What relief should be granted in such cases would depend upon the facts and
circumstances of each case.
the present case, as against the 62 advertised posts the Board made
appointments on 138 posts. The selection process was started for 62 clear
vacancies and at that time anticipated vacancies were not taken into account.
Therefore, strictly speaking, the Board was not justified in making more than
62 appointments pursuant to the advertisement published on 2-11-1991 and the selection process which followed thereafter.
But as the Board could have taken into account not only the actual vacancies
but also vacancies which were likely to arise because of retirement etc. by the
time the selection process was completed it would not be just and equitable to
invalidate all the appointments made on posts in excess of 62. However, the
appointments which were made against future vacancies - in this case on posts
which were newly created - must be regarded as invalid. As stated earlier,
after the selection process had started 13 posts had become vacant because of
retirement and 12 because of deaths. The vacancies which were likely to arise
as a result of retirement could have been reasonably anticipated by the Board.
The Board through oversight had not taken them into consideration while a
requisition was made for filling up 62 posts. Even with respect to the
appointments made against vacancies which arose because of deaths, a lenient
view can be taken and on consideration of expediency and equity they need not
be quashed. Therefore, in view of the special facts and circumstances of this
case we do not think it proper to invalidate the appointments made on those 25
additional posts. But the appointments made by the Board on posts beyond 87 are
the High Court was right in the view it has taken, we modify its order to the
appeals are allowed accordingly. No order as to costs." As is clearly
spelt from the quoted portion, the Government can by a policy decision appoint
people from the waiting list. It has been laid down that on the facts of Prem
Singh's case (supra) while issuing advertisement the Government could have
taken into account likely vacancies. The principle in Prem Singh's case (supra)
was followed in Virender S. Hooda and Ors. v. State of Haryana and Anr. (1999 (3) SCC 696).
appears from the records that prior to the date of advertisement cases of four
persons who had been promoted on officiating basis were receiving consideration
of the PSC. In fact, within a very short period from the date of the
advertisement, PCS approved the recommendations from promotions for four
it cannot be prima facie said that there were no existing vacancies or likely
vacancies. Additionally, the effect of Rule 57 has not been considered by the
Division Bench on the strong reasoning that though learned Single Judge had
referred to a Rule, the specific Rule was not indicated. It is not in dispute
that such a Rule exists. It was not the case of the writ petitioners in the
Appeal before the Division Bench that no such Rule exists. The effect of the
Rule was required to be considered by the High Court.
several other questions also need to be considered. One is why the PCS prepared
select list of only two persons, when it could have drawn up list of six
persons, while drawing up of the select list on 25.10.1999 after the interview
on 14.9.1999. Though a reference has been made by the High Court to the PSC's
stand in its judgment, the details are not indicated.
the question that needs to be considered is if there were six vacancies (two
notified and four existing), whether the eligibility was to be reckoned with
reference to 26.10.1998 or from the date select list was prepared on
25.10.1999. This has to be considered in the background of the dismissal of the
earlier writ petitions filed by Dr. Arun Gandotra and Dr. Sanjeev Kumar. There
is no definite finding recorded by the Division Bench in this regard.
we find that though the State was asked to produce the files, it appears that
for reasons beyond its control the files containing the alleged policy decision
could not be produced for perusal of the Bench hearing the appeals.
aforesaid background, we remit the matter to the High Court for fresh
consideration. Parties shall be permitted to file further affidavits and
documents in support of their respective stand.
undertaken by the learned counsel for the State, files shall be produced as and
when required by the Bench hearing the appeal.
existing position pursuant to interim order of this court shall continue till
disposal of the matter afresh by the High Court. We make it clear that we have
not expressed any opinion on the merits, which shall be considered by the High
Court uninfluenced by any observation made by it earlier in the impugned
appeals are accordingly disposed of without any order as to costs.